| Wis. | Jun 15, 1863
By the Court,
On the trial of this cause the appellants objected to any evidence being received under the complaint, for the reason that it did not state facts sufficient to constitute a cause of action. We suppose this was equivalent to a general demurrer to the complaint, and raises the
The complaint, among other things, states that a bond and the mortgage sought to be foreclosed were given by the appellants to one James McCarty for the use of James Hays, the father of the respondent, conditioned as therein described. It is alleged that there was a failure to comply with the condition of the mortgage. It is also alleged that the respondent is the lawful owner of the mortgage, although there is no averment that it was ever assigned to him. But probably the allegation would be sufficient to admit proof of the assignment, since it might be claimed that he codld not be the owner unless it had been assigned to him. But there is no allegation whatever that the respondent is the owner of the bond, or that it has been assigned to him. This we consider a very essential and fatal defect in the complaint. For it is very clear that if the respondent does not own the bond he has no right to ask for a foreclosure of the mortgage given to secure its payment Had the allegation been that he was the owner of the bond, it might be said that this implied that he likewise owned the mortgage, within the rule of those decisions which hold that the debt is the principal and the mortgage the accessory, a,nd that the latter passes by a transfer of the bond. But it is merely stated that he is the owner of the mortgage, without showing that he has any interest in the debt which it was given to secure. The complaint should have stated that the bond and mortgage had been assigned to the respondent, or at least that he was the lawful owner of them. As the complaint now stands we consider it decidedly defective.
The judgment of the circuit court is reversed, and the cause remanded for further proceedings.