| Wis. | Nov 21, 1882
The counsel for the plaintiff and appellant insists that the learned circuit judge erred in granting the petition of the school district, and ordering it to be made a party defendant, for two reasons: (1) That the petition does not show that the plaintiff was not a mortgagee in good faith, and without any knowledge of the rights of the school district, if it in fact has any rights as against Morrison, the grantee of Potvine; and (2) that it clearly shows that the right which the district claims to have, to collect the amount of its debt out of the mortgaged premises, is superior, to and adverse to the plaintiff’s mortgage. We do not feel called upon, on this appeal, to give any opinion as to the effect of the deed from Potvine to Morrison, the mortgagor, as against the creditors of Potvine, because we are clearly of the opinion that the petition of tbe school district does not show any sufficient cause to entitle'it to be made a party defendant in this action. If the facts stated in the petition show that the district has any right in the mortgaged premises, such right is paramount to and adverse to the plaintiff’s right, and can in no way be affected by a judgment in its favor in the foreclosure action. It is a well-settled rule that the object of a foreclosure action is to bar the mortgagor and those claiming subsequent to the mortgage, and not to try the title alleged to be paramount to that of the mort
The cases of Wicke v. Lake, 21 Wis., 410" court="Wis." date_filed="1867-01-15" href="https://app.midpage.ai/document/wicke-v-lake-6599722?utm_source=webapp" opinion_id="6599722">21 Wis., 410; Roche v. Knight, id., 325, cited by the learned counsel for the respondent, do not controvert the general rule above stated. They only hold that if a defendant who is made a party to the action by the plaintiff sets up in his answer a paramount title, and tenders an issue upon such title, the plaintiff may, if he sees fit, have such right tried in the action, or he may dismiss tlie action as to such defendant.
All the cases hold that the question of title paramount to the title of the mortgagee cannot be tried in an action to foreclose the mortgage unless the parties consent to such trial. The school district, not having been made a party to the action by the plaintiff, would not have been prejudiced by any judgment which could be rendered in such action, and the sole object of its coming in as a defendant is to compel the plaintiff to litigate as to its paramount rights. This it cannot force the plaintiff to do. We think the order is ap-pealable, as in a just sense involving the merits of the plaintiff’s action. If granted, it compels it to litigate a matter which is not pertinent to the cause of action set up in its complaint, and with a party who is not a proper party to such action, and must necessarily delay it in obtaining a final judgment.
The school distinct has a clear remedy, either by proceeding to sell the land by an order from the probate court, if, as it claims, the title conveyed to Morrison was upon a con-dition subsequent, by the nonperformance of which the title
By the Court.— The order of the circuit court is reversed, with costs against the respondent School District No. 3 of the Town of Lincoln, and .the cause is remanded for further proceedings according to law.