13 Wis. 22 | Wis. | 1860
By the Court,
It seems to us very clear that Heeran bad no right to satisfy and discharge of record tbe mortgage mentioned in tbe pleadings in this case. He bad already transferred and assigned that mortgage and tbe accompanying note, for a good and valuable consideration, to tbe respondents, to secure tbe payment of tbe debt be owed them. Tbe note and mortgage were not due, and there was nothing to show that they were not executed to secure a Iona fide indebtedness from Mulhare to Heeran. And tbe evidence incontestably proves that Heeran obtained from tbe respondents nearly two thousand dollars’ worth of merchandize upon tbe strength of these securities, at tbe time-be assigned and pledged them. Why, then, could not tbe respondents bold tbe note and mortgage to secure tbe payment of tbe amount advanced upon tbe strength of these securities, thus pledged before maturity for value and without any notice to tbe respondents of tbe character or purposes for which tbe note and mortgage were made ? Assume that tbe respondents had no right to bold tbe note and mortgage, under tbe circumstances, to secure tbe payment of any pre-existing indebtedness from Heeran, still in law and equity could they not bold them for tbe then contracted indebtedness for which tbe securities were thus pledged ? It seems to us there can be no kind of doubt about tbe right of tbe respondents to bold tbe mortgage and note for this purpose..
Tbe counsel for tbe appellant contended that tbe circuit court erred in admitting evidence to prove tbe amount of tbe debt contracted at tbe time tbe mortgage was pledged and assigned, and insisted that tbe debt could only bave been proven by tbe production of tbe notes themselves. We do not so understand it. Tbis was a proceeding to bave tbe satisfaction of tbe mortgage, which bad been entered of record, vacated and set aside. That satisfaction bad been entered by Heeran without any authority whatever. Tbe respondents were entitled to bave tbis discharge vacated and tbe mortgage declared a valid lien upon tbe mortgaged premises, upon showing tbe nature and character of their interest in it. They certainly could prove by parol tbe whole transaction, and tbe indebtedness for which tbe mortgage and note were pledged as security. When they came to foreclose tbe mortgage, it would be necessary to produce tbe notes or satisfactorily account for tbem. But they clearly established their interest in the mortgage, and their right to bave tbe discharge vacated. And it was not necessary to produce tbe notes for tbis purpose. There was ample evi-' dence that' tbe notes belonged to respondents, and there was no testimony to tbe contrary.
The judgment of the circuit court is affirmed.