64 Wis. 560 | Wis. | 1885
We think the evidence in the case fully sustains the contention of the respondent that the appellant, a,nd defendant in the court below, with full knowledge that his mortgagor had sold the property in question to the respondent for its full value, accepted the money received on
The argument of the learned counsel for the appellant, that the sale made by the mortgagor was not an illegal act, it seems to us can have no weight in the determination of this question. The sale in this case was not a sale of the mere equity of redemption, but was a sale of the things themselves for a full consideration, and such sale was a fraud in fact on the purchaser if the mortgagee is still to hold the property sold. The fact of such sale was known to the mortgagee when he secured the purchase money for the property so sold; and having received the money without objection, knowing of the fraud which would be perpetrated upon the purchaser if he should enforce his mortgage,' equity and good conscience require that he shall either release his mortgage or return the purchaser’s money. He cannot retain the money and hold the property under his mortgage.
The injustice of holding both the money and property* is ■ so apparent that it is unnecessary to cite authorities upon the point. It seems to us that the appellant does not stand in any different position than he would had he been present at the sale made by his mortgagor, without disclosing Jiia: mortgage, and had then received the purchase money immediately upon its being paid by the purchaser to his mortgagor. In that case even the learned counsel for the appellant admits that, after the acceptance of the purchase price, he could not enforce his mortgage against the purchaser. The fact that the sale was made without his knowledge at the time does not change the relations of the parties when he admits that he was immediately informed of the
By the Court.— The judgment of the circuit court is affirmed.
