Jones v. Parker, 51 Wis. 218

Jones v. Parker

51 Wis. 218 | Wis. | 1881

Lyok, J.

Regarding substance rather tnan mere form (which a court of equity will always do), there can be no doubt that the original mortgage executed by Albert H. McLaughlin and wife to the plaintiff was a security for the purchase money of the mortgaged land. Albert negotiated with his father for the purchase of the land, and with the plaintiff for a loan of money with which to pay for it. The three met and together consummated the negotiations. At one time and constituting one transaction, the father executed a conveyance of the land to Albert, the plaintiff paid the purchase money therefor, and Albert and his wife executed to the plaintiff a mortgage upon the land to secure the sum so paid. In substance and legal effect the transaction was the same as though the mortgage had been executed to the father for the purchase money, and by him assigned to the plaintiff.

In a case somewhat like this, but no stronger than is this case for the plaintiff in its facts, the supreme court of Iowa very recently held that a mortgage to secure money advanced under similar circumstances by a stranger to the title is a mortgage for purchase money. The court sustains that view in a well-considered opinion by Rotheock, J., in which many authorities are cited in support of the judgment. Kaiser v. Lembeck, 7 N. W. Rep., 519. The mortgage in suit, which was substituted for the original mortgage for the accommodation of Albert and his grantees, the Swensends, is necessarily a *224security for purchase money also. The substitution did not and could not change the character of the original transaction. Without the signature of the wife, the first mortgage would have been a valid lien upon all of the land; for, when it was executed, no part of the land was the homestead of the mortgagors. Neither would the wife have had any right'of dower as against the mortgage, because it was for purchase money. R. S. 1858, ch. 89, sec. 4; R. S., 626, sec. 2163. If, without the signature of the wife, the first mortgage would have been valid upon the whole of the land, and paramount to her right of dower therein, it is impossible to conceive any equitable rule which would render the substituted mortgage less valid or paramount as against those claiming under the mortgagors. Such a rule would have to rest entirely upou a technicality, and could find no support in the broad and enlightened principles upon which courts of equity administer justice. Furthermore, we incline to the opinion that the appellants are not in a position to contest the validity of the plaintiff’s mortgage in any respect. But it is not necessary to determine this proposition, and we do not care to discuss it, for our views on the other branch of the case are decisive of it.

By the Court.— The order of the circuit court allowing the judgment of foreclosure to stand against the defendants, as to the alleged homestead, must be affirmed.