50 Wis. 240 | Wis. | 1880
Lead Opinion
1. The jurisdiction of equity to reform a'' written instrument, on the ground of mistake, is exclusive. Story’s Eq., §§ 154-157; Follett v. Heath, 15 Wis., 601; Harrison v. Bank, 17 Wis., 340. The counsel for the appellant-referred to two cases in this court—Parker v. Ins. Co., 34 Wis., 363, and Roberts v. Ins. Co., 41 Wis., 327—in support' of the position that courts of law now possess concurrent jurisdiction. But neither of these cases, nor, so far as is known, any others, support him. And it is hardly necessary to remark that such a rule would open the door wide for parol evidence to modify written contracts, of which' courts of law have such an abhorrence. The rule is familiar that a'court of equity, having taken jurisdiction of the subject matter of- liti--gation for one purpose, will, retain it for all purposes between’ the parties. Prescott v. Evarts, 4 Wis., 314; Akerly v. Vilas, 15 Wis., 401; Hamilton v. Fond du Lac, 25 Wis., 490.
The averment in the complaint of a mistake in the policy of’ insurance, and'the prayer for its reformation, give jurisdiction in equity. If the policy should be reformed, the court will retain jurisdiction for the determination of all issues which may be made upon it; and all issues of fact will, if required; be tried by a jury. Harrison v. Bank, supra.
2. The legal title to the policy of insurance was as effectually in the plaintiff as if it had been assigned to him. Appleton Iron Co. v. Ins. Co., 46 Wis., 23. He was’ mortgagee of the premises insured, and the loss, if any, was made payable to him as his interest might appear. His mortgage debt is averred to be greater than the sum insured. Thus his interest appears to be the whole interest in the policy. In these circumstances it is difficult to pereeive why the mortgagor is a necessary party. It has been held in this court that where the legal.title of the policy is in the creditor, he may maintain an’
It was contended that this rule affords no adequate protection to the mortgagor. The answer to this position is, that the demurrer admits that the mortgagor has no interest. It is competent for the defendant to suggest, by affidavit or answer, that the mortgagor is a necessary plaintiff. R. S., secs. 2610-2611. But he can raise the question by demurrer only when the interest in the mortgagor is patent in the complaint. Where the mortgagor is not made a party, there is, perhaps, a risk that his interest may not be properly protected. But this may happen to assignors in all actions by assignees. Indeed, it may happen in any litigation where there is an outstanding, unapparent interest in one not a party. This is an infirmity of human-justice. All that courts can do is to require those to be made parties whose interest is apparent; and sometimes, when this cannot be done, to do justice to the parties before them as far as they may be able. Du Pont v. Davis, 35 Wis., 631.
The order overruling the demurrer must be affirmed.
Dissenting Opinion
I most respectfully dissent from the decision of this case. The insurance policy was issued to the mortgagor, and the loss made payable to the mortgagee as his interest may appear; that is, as his interest may appear in and by this suit. What his interest is in' the loss is one of the material questions to be determined in this suit, and this ques
If it is shown that the interest of the mortgagee is less than the whole loss, then the mortgagor will be entitled to the over-plus; and if it be shown that the mortgagee has no interest, then the mortgagor will be entitled to the whole loss, and a judgment for the same in this suit. Instead of the averments of the complaint showing that the mortgagor has no interest, they show that he has a direct interest in one of the material questions to be litigated in the suit. But it is said also that the defendant insurance company may, by answer, controvert this averment of the complaint, and then it may appear by the answer that the mortgagor is interested in the question and a necessary party. Why so? If the company may by answer deny this allegation, and allege the payment of the mortgage wholly or in part without the presence of the mortgagor as a party, why may not the company also try the question of fact upon such an issue without his presence? If there can be but one suit on this policy for the loss, and this adjudication is final and conclusive of the rights of the mortgagor, then the insurance company is indifferent and has no interest in raising such an issue, and will not make such an issue for and on be
No case is cited in which it has been held that the mortgagor, ■-in a cáse like this, where the policy was issued to the mortgagor, • and the loss payable to the mortgagee as his interest may appear, was not a necessary party. All of the cases cited were where the whole loss was payable to the mortgagee. This :case must rest alone upon the general principle that all persons interested in the subject matter of the litigation must be made ¡parties. The interest of the mortgagor in the subject matter ■ of this litigation is clearly apparent from the complaint itself, .and the defect in his not being made a party to the suit may be taken advantage of by demurrer. This is really the only way in which the defendant would be able to raise the question; and why-should not the insurance company be allowed, upon the demurrer to the complaint, to suggest and contend that the complaint shows the mortgagor to be a necessary party, and that he ought to be brought in in order that a full deter-ruination of the whole controversy may be made in this one 'action against the company? "Why should the insurance com- ’ pany be compelled to state facts in an answer, of which it has and can have no actual knowledge, in order to show that the 'mortgagor has an interest in the subject matter of the suit, where his interest in the questions to be litigated, tried and determined is so clearly apparent on the face of the complaint?
By the Oourt.— The order overruling the demurrer is affirmed.
