214 Wis. 537 | Wis. | 1934
The following opinion was filed February 6, 1934:
Defendant Gladwin Mularkey is indebted to plaintiff for building materials of the value of $504.78. A lien was filed on November 27, 1929, against the premises under foreclosure, and a renewal of lien was filed October 4, 1930. No question is raised as to the validity of plaintiff’s lien. At the time the materials were furqished, the premises were incumbered by a mortgage executed by defendant Gladwin Mularkey to defendant Emilie Mularkey to secure a note for $3,000. This mortgage bore date of October 20, 1928, and was duly recorded. On December 9, 1929, Gladwin Mularkey executed a mortgage to Margaret McNamara for $1,000, which was duly
It is the contention of plaintiff that the Mularkey mortgage was intentionally and deliberately released; that the ignorance of plaintiff’s lien was the result of negligence which bars relief, and that the satisfaction gave to plaintiff’s lien a priority which cannot now be disturbed.
The authorities in this country are overwhelming to the effect that such a satisfaction as is here involved is not .conclusive as to the discharge of the mortgage or the payment of the indebtedness secured thereby, and that in the absence of paramount equities it will not be held to have resulted in a subordination of the security of the senior lien to an existing junior lien unless the circumstances of the transaction indicate this to have been the intention, or unless such intention is shown by extrinsic evidence. See note 33 A. L. R. 149. The case of Conner v. Welch, 51 Wis. 431, 8 N. W. 260, is there cited as contrary to the majority rule. In this case Osborne was the owner of the premises in question. He gave a first mortgage to one Allen; a second and third mortgage to Patrick Duffy; a fourth mortgage to Elizabeth Duffy, and a fifth mortgage to plaintiff. Thereafter defendant Stein took judgment against Osborne, which was duly docketed. On the next day Stein assigned this judgment to his attorney, William Welch. Two days later the second, third, and fourth mort
In the instant case there was no payment of the debt and no intention finally and fully to satisfy the mortgage or to do more than subordinate the existing first mortgage to the new McNamara mortgage. However, if the holder of a lien existing at the time of the satisfaction is to be treated as one whose rights have so “intervened” as to bar relief, and if failure to discover the existence of this lien ne'cessarily constitutes gross negligence, it would be diffi
No such situation is here presented. Plaintiff has done nothing in reliance upon the satisfaction. The first mortgage has never been paid. The transaction was consummated without knowledge of the fact of plaintiff’s lien. The judgment of the trial court restores the Mularkey mortgage to its former position of priority. The plaintiff’s lien, by
By the Court. — The portion of the judgment appealed from is affirmed.
A motion for a rehearing was denied, with $25 costs, on April 3, 1934.