93 Wis. 637 | Wis. | 1896
Lead Opinion
The following opinion was filed June 19, 1896:
This is an appeal from a judgment of mortgage foreclosure. There was no principal or interest due when the action was commenced, and the only default then existing was that the taxes upon the premises for two years had been allowed to remain unpaid, contrary to the covenants of the mortgage. The mortgagee had not paid these taxes, but they had been paid by a prior mortgagee. The
By the Oourt.— Judgment reversed, and action remanded with directions to dismiss the complaint.
Rehearing
The following opinion was filed September 22, 1896:
On motion for rehearing onr attention is. called to an inaccuracy in a statement of fact contained in the opinion. It is said in the opinion that the only default existing when the action was commenced was that the taxes remained unpaid for two years, but that the plaintiff had not paid them. "We gathered this from the findings of fact,, but it appears in the plaintiff’s testimony that when the action was - commenced he believes he held tax certificates for two years, but that before the trial of the case the owner of the first mortgage had paid him the amount of the certificates, so that he had received back his money. Thus his own testimony shows that at the time of the trial of the action there was, as said in the opinion, “ a breach of the covenant to pay taxes, but not a dollar . . . due on the-mortgage.” It is certainly true that, had plaintiff retained his tax certificates, the sums paid for them would have become part of the mortgage debt, and probably a foreclosure-might be maintained for such breach, even in the absence-of a clause to that effect in the mortgage. E. S. secs. 1158-1160; Burchard v. Roberts, 10 Wis. 111. But it affirmatively appears here that when the action was tried there was nothing due the plaintiff, but that there existed a mere naked breach of the covenant to pay taxes; and this, we hold., gives no right to a judgment of foreclosure.
By the Oourt. — Motion denied.