3 N.W.2d 730 | Wis. | 1942
Action by the Home Owners' Loan Corporation to foreclose a mortgage upon certain real estate located in the city *114 of Racine. The circuit court entered judgment on December 27, 1941, providing that plaintiff was entitled to a judgment of foreclosure against the interests of Tony Papara and Esther Papara, his wife, "with the exception of the dower rights of Esther Papara. In the event at the sale of the above interests . . . in said property, buyers do not offer the amount due under the mortgage, . . . then the dower interests of Esther Papara, . . . in and to the real estate which is the subject of this action, shall be sold at said sale;" that the prior mortgage of the Home Mutual Building-Loan Association be revived and the plaintiff subrogated to all rights of such prior mortgagee as against the inchoate dower interest of Esther, and that plaintiff was not entitled to foreclose against the interests of Carmen and Louise Papara or the heirs of Carmen. From this judgment plaintiff appeals. Esther Papara filed a motion to review that portion of the judgment holding that plaintiff may foreclose against her inchoate dower interest. The following opinion was filed May 5, 1942: The real estate in question, consisting of a city lot occupied by a two-story frame house, was purchased by defendant Tony Papara and his brother Frank, since deceased, as tenants in common, both then single, on January 8, 1925. To finance the purchase of the property the brothers executed a note, bond, and mortgage in favor of the Home Mutual Building-Loan Association, binding themselves *115 severally and jointly to pay the sum of $3,500. In 1925, subsequent to the purchase of the property and the execution of the mortgage to the Building-Loan Association, Tony married Esther Papara who has filed a motion to review portions of the judgment on this case.
In 1928, Frank Papara died intestate survived by his mother Louise Papara and his father Carmen Papara. By decree of the county court of Racine county, dated April 29, 1929, title to the undivided one-half interest of Frank in the real estate was declared to be vested in Carmen and Louise Papara as the heirs at law of the decedent. At the time of his death, the interest of Frank was subject to the unpaid balance of the Building-Loan Association mortgage.
Carmen Papara left Italy and came to Racine, Wisconsin. The mother, Louise Papara, never came to this country. For many years prior to the commencement of this action Tony and Esther Papara lived on the mortgaged premises and occupied it as their homestead. They were living there at the time of the death of Frank, and Tony regarded this property as his own, and believed that he was its sole owner. Tony never conferred with his father or mother, or after the death of his father with any of his sisters or brothers regarding the management of the property.
September 18, 1933, Tony Papara made written application to plaintiff HOLC for a loan secured by the property in question. At this time the Building-Loan Association mortgage was overdue, and taxes for the years 1931 and 1932 were delinquent. The application went through the usual channels of the HOLC and the loan was made on September 12, 1934. This loan, in the amount of $3,389.65, was used to pay the Building-Loan Association mortgage, principal and interest, and to pay three years' delinquent taxes; the balance of the money being used to pay insurance, cost of abstract, releasing of judgments, and fees. The money advanced by plaintiff was paid by it to the Building-Loan Association which *116 delivered a written satisfaction in full and canceled its note and bond. To secure and evidence the refinancing loan the HOLC was given a note and mortgage purportedly executed by the interested parties. As a matter of fact the signature of Carmen Papara and the mark of Louise, successors to the one-half interest of Frank, were forged, both the plaintiff and the answering defendants disclaiming any knowledge as to who committed the forgeries. Tony's wife Esther did not sign the loan application but did sign the note and mortgage. Esther, who was able to read and speak the English language, signed the mortgage at the request of a stranger who called at her residence and after showing her the signature of her husband requested her to sign the instrument. He did not reveal to her the nature of the document. She, however, made no inquiry as to the character of the paper and signed it upon request. The mortgage was not executed in the presence of witnesses nor acknowledged.
Carmen Papara died, after the execution of the HOLC mortgage and prior to the commencement of these foreclosure proceedings, survived by his wife Louise and several children, some of whom are living in this country and some in Italy. Joined as defendants in this action are Tony and his wife Esther, a brother Louis and his wife, both living in Racine, and the unknown heirs of Carmen and others having an interest in the property, and a judgment creditor who did not appear.
The questions to be determined on this appeal are, (1) whether plaintiff is entitled to foreclose against the inchoate dower rights of Esther Papara; and (2) whether plaintiff is entitled to foreclose against the present owners of the interest of Frank Papara.
It is clear that plaintiff stands in the position of one entitled to the benefit of the doctrine of subrogation for "it advanced the money under a definite agreement that plaintiff have security in the form of a first mortgage." Bank of Baraboov. Prothero (1934),
The rights of Esther under the homestead and dower statutes might be of concern but for the fact that the HOLC is entitled to an equitable assignment of the Building-Loan Association mortgage and has a lien superior to her possible claims. At the time of her marriage, Esther's rights were subject to a pre-existing valid lien on the property, and any failure to execute the new mortgage with the formalities required by secs. 235.27 and 235.19, Stats., cannot deprive the plaintiff of its rights to foreclose against her interests in this case. As said by Mr. Justice WINSLOW in the case of Lashua v. Myhre
(1903),
"Had the wife refused to sign the new mortgage at all, it is not seen how the result could have been different. The owner of the property having borrowed money of the defendant under his agreement that it should be used to pay off a valid mortgage thereon and that defendant should have a new one in place thereof, and the money having been in fact so used, a court of equity would doubtless keep alive the valid mortgages for the defendant's protection to meet the very contingency of the wife's refusal to sign. The wife is not, therefore, deprived of any protection which the law has granted her. Exemption and homestead laws are liberally construed to effect their beneficent purpose, but they will not be construed so as to accomplish positive frauds, if such a result can be avoided."
It is unnecessary to consider whether or not the acts of Esther in this case constitute a sufficient basis for creating an equitable estoppel within the rule of Krueger v. Groth (1926), *118
Subrogation as against Esther does not cut off any intervening rights of one relying upon the extinguishment of the prior mortgage nor of one who has innocently placed himself in a position of disadvantage and would be injured by the application of the doctrine. As previously stated, Esther's rights were subject to a pre-existing valid mortgage upon the property and to permit plaintiff to assert the rights of the original mortgagee against her would not prejudice her interests.Serial B. L. Sav. Institution v. Ehrhardt (1924),
The circuit court denied plaintiff the right to assert its claim against the interest of Tony's cotenants on the theory that Tony was acting solely for himself and did not attempt to transact any business on behalf of the co-owners, the court saying in its opinion: "There is not a scintilla of evidence in the record from which an inference, much less a finding, may be made that the relationship of principal and agent existed between the defendant, Tony Papara, and his father or mother, or that he was acting for them in any respect in negotiating and executing the mortgage in question." But in reaching its conclusion the trial court failed to consider the controlling relationship governing the transactions in question. The relationship to be considered is not that of principal and agent but that of cotenants.
As a general rule a cotenant paying off a mortgage upon the entire interest is entitled to be subrogated to the rights *119
of the mortgagee against his cotenants and has a lien against their interests, Hermance v. Weisner (1938),
In proper cases equity will protect one advancing money secured by a forged' mortgage to pay an existing valid lien.Davies v. Pugh (1907),
Respondent argues that the doctrine of subrogation is inapplicable in this case by reason of the negligence on the part of plaintiff in failing to take steps to obtain a properly executed mortgage. Even in the case of negligence, however, one who is not a volunteer is entitled to equitable assignment in the absence of intervening equities. Iowa County Bank v. Pittz
(1927),
The doctrine of subrogation rests upon the theory of unjust enrichment. Restatement, Restitution, p. 652 et seq., § 162. In the instant case those having an interest in the property, Tony's wife and cotenants, as well as Tony, alike received the benefit of the HOLC loan, the payment of an existing mortgage valid as against their interests, Smith v. Sprague, supra; and none of them has changed nor been induced to change his position by reason of the satisfaction of the Building-Loan Association mortgage. Home Owners' Loan Corp. v. Rupe
(1938),
This case is parallel with Hughes v. Thomas (1907),
By the Court. — The judgment as it affects the interests of Tony and Esther Papara is modified to permit a foreclosure as to those interests, and as so modified is affirmed, and as to the other defendants it is reversed, and the cause remanded with directions to enter judgment in accordance with this opinion.
A motion for a rehearing was denied, without costs, on June 26, 1942. *122