Heath v. Frackleton

| Wis. | Jan 15, 1866

Dixon, C. J.

This suit cannot be maintained without unsettling the very foundation of the judgment in the foreclosure action. What is it that the plaintiff proposes to do ? Why, clearly to show that there was no such debt, no such valid notes and mortgage, as those described in and which constitute the foundation of that judgment. We do not argue to prove that the judgment is conclusive that there was such a debt and that the notes and mortgage were valid and the money due upon them. It is an elementary principle that every such judgment, unless impeached for fraud, is so far absolutely conclusive upon the parties to it. To maintain this action the plaintiff must go behind the judgment, and show that the whole sum for which it was rendered was not due and owing, and also that the notes and mortgage, as to the sum of $1000 and all the interest purporting to have been secured by them, were void for usury. No plainer case within the rules of estoppel by judgment can be imagined. It is true, as urged, that the plaintiff’s right to sue for three times the amount of usury paid, did not acrue until the notes and mortgage were satisfied by a sale of the mortgaged premises. But that does not avoid the difficulty. We have seen that the judgment is conclusive that there was no usury; and hence the plaintiff has not made out by his complaint, and cannot make out by proof, a cause of action. Steward v. Douner, 8 Vt., 320" court="Vt." date_filed="1836-02-15" href="https://app.midpage.ai/document/steward-v-downer-6571869?utm_source=webapp" opinion_id="6571869">8 Vt., 320; Grow v. Albee, 19 Vt., 540" court="Vt." date_filed="1847-04-15" href="https://app.midpage.ai/document/grow-v-albee-6573699?utm_source=webapp" opinion_id="6573699">19 Vt., 540.

Tbis case bears no analogy to that of Eastman v. Porter, 14 Wis., 39" court="Wis." date_filed="1861-05-15" href="https://app.midpage.ai/document/eastman-v-porter-6598456?utm_source=webapp" opinion_id="6598456">14 Wis., 39, where tbe plaintiff, being defeated in bis action upon tbe note on tbe ground of usury, bad still a primary cause of action, not involved in tbe issue upon tbe note. Nor is it analogous to Woodward v. Hill, 6 Wis., 143" court="Wis." date_filed="1858-07-01" href="https://app.midpage.ai/document/woodward-v-hill-6597555?utm_source=webapp" opinion_id="6597555">6 Wis., 143, and cases of that nature, where tbe defendant has a distinct cause of action or counter-claim against tbe plaintiff, which be may set up in defense, but does not, and which is not, therefore, involved in tbe judgment. It is in principle tbe very same as Driscoll v. Damp, 17 Wis., 419" court="Wis." date_filed="1863-06-15" href="https://app.midpage.ai/document/driscoll-v-damp-6599038?utm_source=webapp" opinion_id="6599038">17 Wis., 419. Tbe facts on which tbe plaintiff relies to sustain bis action, are such as go to tbe legal existence and validity of tbe notes and mortgage themselves, which were established by tbe judgment, and which cannot now be overhauled in any collateral proceeding. Tbe plaintiff should have made his defense in tbe foreclosure action.

By the Court.- — Judgment affirmed.