Kasson v. Tousey

96 Wis. 511 | Wis. | 1897

PiNNEY, J.

An examination of the record shows that the first mortgage on the premises, held by the defendant Jefferson, has not been foreclosed, and it is apparently outstanding and in. full force. The defendant Jefferson did not set up any claim in the action for its foreclosure, or for the proceeds of the foreclosure sale, and the judgment of foreclosure doós not purport to affect this mortgage in any way whatever, except that it appears to have been provided by the judgment entered upon.the motion of the plaintiff, Has-son, on his mortgage, which was subsequent and expressly subject to Jefferson’s, that the proceeds of the foreclosure sale, after the payment of costs, etc., should be first applied, so far as necessary, to pay off Jefferson’s mortgage. But the judgment was not executed in that manner. Instead .of paying the net proceeds of the sale upon the Jefferson mortgage, they were paid to and appropriated by the plaintiff, Hasson, leaving the deficiency due in fact on the decree in his favor only $558.55, and Jefferson’s mortgage wholly unpaid and still remaining a lien upon the premises purchased by and conveyed to Hasson on the foreclosure sale, for all that now remains due on it. Evidently Hasson now holds the premises subject to that mortgage. Jefferson has never applied to the court to obtain the net proceeds of the mortgage sale, and has apparently acquiesced in the appropriation thereof by Hasson, content with his prior unsatisfied mortgage lien. It is certain that the plaintiff, Hasson, is not entitled to a judgment as for deficiency or otherwise against the defendant Tousey, for money that Tousey owes Jefferson. Having received and appropriated the net proceeds of the foreclosure sale, he is in no position to claim a' judgment against the defendant Tousey for any greater sum than the debt due to him, after deducting the net proceeds of the foreclosure sale, leaving $558.55 deficiency, instead of $2,644.67. This will leave Jefferson in a position to enforce his mortgage against the premises purchased by Hasson at the foreclosure sale for whatever sum may be due on it.

The proceedings in the action have been conducted in a very imperfect and unsatisfactory manner, but we think that the view we have taken of the rights of the parties will accomplish the ends of substantial justice without a violation of legal principles.

It follows that the judgment for deficiency appealed from must be reversed, and the cause remanded to render a judgment for deficiency in favor of the plaintiff against the defendant Tousey for $558.55, instead of $2,644.67.'

By the Court. — Judgment is ordered accordingly.