John v. Larson, 28 Wis. 604

John v. Larson

28 Wis. 604 | Wis. | 1871

Cole, J.

Some question is made as to the origin of plaintiff’s title. It is said by his counsel that the sheriff’s deed under which he claims was executed in a foreclosure suit wherein Agnes Whittemore was plaintiff and Miller and wife were defendants, and that there is no averment or offer of proof, which in any manner connected the matter set forth in the answer with the Whittemore mortgage. We presume the fact was that Mrs. Whittemore was the assignee of the Weisbrod mortgage, for *608tbe answer states that tbe plaintiff purchased at tbe foreclosure sale made under that mortgage, and claims tbe premises by virtue of that sale, and of tbe sheriff’s deed made in pursuance thereof. It is very obvious that tbe cause was tried upon tbe assumption on both sides that tbe plaintiff claimed tbe premises under tbe foreclosure and sale upon tbe Weisbrod mortgage/and that this was tbe foundation of bis title. We shall therefore consider tbe case in that light. Do, then, tbe matters set up in tbe answer constitute a defense to tbe action ? Tbe plaintiff objected to any evidence under tbe answer, for tbe reason that tbe facts therein set forth did not constitute any defense ; and tbe court held that all evidence must be excluded, unless tbe defendant was able to prove that tbe purchase under tbe foreclosure sale by tbe plaintiff was at tbe request and for tbe use and benefit of Miller, tbe mortgagor.

According to our view, it is quite immaterial whether tbe plaintiff purchased at tbe foreclosure sale for tbe benefit of Miller or not, for be was affected with notice of tbe defendant’s lights, whatever they were. Eor, in tbe first place, it appears from tbe answer — which for tbe purposes of this case we must assume to be true — that when tbe Weisbrod mortgage was executed by Miller, tbe defendant was in tbe actual possession of tbe premises in controversy, and bad been since 1858, and bad made valuable improvements upon them. Upon principles perfectly familiar and well settled, Weisbrod was then chargeable with notice of this possession, and was bound to ascertain by what right tbe defendant held and occupied tbe premises. Tbe correctness of this proposition is too obvious to require tbe citation of authorities in its support.

But, besides tbe presumption of notice arising from possession, there is another circumstance which shows conclusively that tbe mortgagee was apprised of tbe defendant’s claim to tbe premises, and that is this: Tbe mortgage was given to Weisbrod for services to be rendered by him as attorney in bringing an action in tbe name of Miller against tbe defendant for tbe recovery of *609these premises. What circumstance can be imagined better calculated to charge Weisbrod with actual notice of the adverse claim of the defendant, than to be employed to prosecute a suit to test the validity of this very claim? He must therefore be held to be chargeable with notice of the most conclusive character, of the rights of the defendant in the property when the mortgage was executed. And at the time of sale, it amo appears, the defendant was present, and forbade the sheriff selling the land, and notified all persons, especially the plaintiff, of his claim to and possession of the premises. The plaintiff consequently purchased with full knowledge of the defendant's rights.

What, then, are those rights under the agreement set up in the answer? We had. occasion to consider that question in the case of Miller v. Larson, reported in 19 Wis. R., 463. That was an action brought by Miller against this same defendant to recover possession of the premises in controversy. To defeat a recovery, the defendant set up and relied upon the agreement contained in the third defense in the present answer. And while this agreement was there held to be champertous in its character, still it was determined that it had been so far executed that a court of justice would not interfere to deprive the defendant of the possession of the property acquired under it. The contract, though unlawful, yet having been executed, and the parties to it being in pari delicto, the law would leave them as they were, affording a remedy to neither. And the question is, Will the law be any more active in aiding a party to obtain the possession who stands in Miller’s' shoes, who has merely succeeded to his rights, and who has no superior equities in the-property ? If the court will aid a party thus situated, upom what principle does it' proceed ? For it is manifest that the-plaintiff is a privy in estate to Miller, and is affected with notice of the defect in his title. Ordinarily the rights of the mortgagee in the property are no greater nor more perfect than those-of the mortgagor. In the language of a learned writer, “ The; *610rule wbicb limits tbe right of tbe buyer by that of tbe seller, and subjects tbe title of tbe one to every drawback or defect wbicb attached to that of tbe other, is the general rule, both of law and of reason.” Note to Basset v. Nosworthy, 2 Leading Cases in Equity, p. 80. What is there in tbe circumstances of this case wbicb makes it an exception to this general rule? We really know of nothing, and no satisfactory reason has been given, why tbe plaintiff has a stronger claim to deprive tbe defendant of tbe possession than tbe mortgagor to whose rights be has succeeded.

It is indeed suggested in tbe brief of plaintiff’s counsel, that while Miller could not recover tbe property from tbe defendant on account of bis participation in tbe cbampertous agreement, yet this was a personal disability, wbicb did not taint tbe mortgage, nor affect tbe purchaser at tbe foreclosure sale. If this were so, then it is obvious that tbe policy of the law wbicb condemns champerty might be easily avoided. For, as remarked by tbe defendant’s counsel, A. has only to make a cbampertous contract with B., and tbe latter having fully performed and A. reaped tbe full benefit of tbe agreement, be may then assign to C., who can strip B. of all that be has acquired by bis labor and money. In this way tbe assignee would escape tbe full consequences wbicb tbe law denounces against tbe unlawful agreement. Now Miller bad no rights in these premises wbicb tbe court would enforce; and tbe plaintiff, who is affected with notice, stands in tbe same situation. Tbe facts wbicb constituted a good and valid defense against tbe party under whom be claims, are equally conclusive against him.

It follows from these views that tbe judgment of tbe circuit court must be reversed, and a new trial ordered.

By the Court. — So ordered.