Farmers' Loan & Trust Co. v. Fisher

17 Wis. 114 | Wis. | 1863

By the Court,

Dixon, G. J.

The mortgages and deed of surrender under which the plaintiff claims, have been several times under examination before this court. Farmers' Loan & Trust Co. vs. Commercial Bank, 11 Wis., 207; The same vs. The same, 15 Wis., 424; The same vs. Cary, 13 Wis., 110; Dinsmore vs. The Racine & Mississippi R. R. Co., 12 Wis., 649. It follows, we think, from the reasoning of those cases, that the plaintiff acquired an interest in the lands in question by virtue of the mortgage upon the eastern division of the road, although the railroad company did not acquire its interest in the land under the contract with Beane until after the execution of that mortgage. The complaint avers that the contract was entered into with Beane, and the lands purchased by the railroad company, for the purpose of a depot, road-bed, side tracks, &c., at the village of Beloit; that the same are suitable and convenient for those purposes; and that the depot buildings and track, now in actual use, stand upon and’ run across the same. The lands having been purchased for and appropriated to these uses, the lien of the plaintiff’s mortgage attached the moment the interest of the railroad company was acquired; and no subsequent alienation or transfer by the railroad company or its officers, without the assent of the plaintiff, could operate to displace or impair such lien. As a mortgagee in possession, therefore, and for. the purpose of protecting the lien, the plaintiff has such an interest as will enable it, upon payment or tender of the residue of the purchase money, to compel the execution of a comveyance to the railroad company; and a consideration of tbe effect of tbe deed of surrender becomes unnecessary. Sucb is tbe object of tbe present action. Tbe plaintiff asks, upon payment of tbe balance of tbe purchase money due to Beam under'tbe contract, tbat tbe deed from bim to tbe railroad company, deposited with Washburn, may be delivered and recorded. This would secure tbe title of tbe railroad company, and thus protect tbe lien of tbe mortgage ' to tbe plaintiff.

[Noth. — The above case was decided at the June term, 1862, but the opinion was not filed in time to appear with the decisions of that term. — Rep.]

As a measure of auxiliary relief, and to prevent confusion in the title of record, it is proper enough tbat tbe plaintiff should ask that tbe execution of tbe deed from Beane to Bushnell should be restrained. Tbe plaintiff, being a stranger to tbe action of Beane against the Railroad Company, Bushnell, Washburn and others, is, of course, not bound by tbat judgment. This has been already decided. Beane vs. Fisher et al., 14 Wis., 57. If tbe deed from Beane to Bushnell bad been executed, tbe proper relief would have been to compel a conveyance from Bushnell to tbe railroad company.

Whether tbe plaintiff was authorized, under its charter and tbe several amendments, to receive tbe mortgage, cannot be made a question upon this demurrer. Tbe charter, with tbe several amendatory acts, are pleaded by their titles, and it is likewise averred tbat tbe plaintiff was “ duly authorized to receive tbe trusts in tbe complaint mentioned.” This is good pleading under tbe statute, a recital of tbe acts of incorporation, or of those parts of them under which tbe specific powers are claimed, being unnecessary. R. S., chap. 148, secs. 4, 11. The Connecticut Mutual Insurance Co. vs. Cross, unreported. Tbe demurrer admits tbat tbe plaintiff was authorized as alleged in tbe complaint.

Order affirmed.