Krugmeier v. Hackett

134 Wis. 57 | Wis. | 1907

Dodge, J.

No issue is taken with the appellant’s contention that, as a strict rule governing legal rights, the payment of a debt secured by mortgage extinguishes the mortgage completely, and that such mortgage cannot be revived and become a valid lien upon real estate without the formalities required by law for the original execution of mortgages. But we deem such principle noncontrolling of the rights of these parties, for two reasons: First, that there is no antagonism by any clear preponderance of the evidence to the finding of the court that the transaction agreed to by defendant bank, Haclcett, and the plaintiff was that the bank should take over and continue to carry the debt of $5,700 theretofore owned by Haclcett and secured by the real-estate mortgage, and that the mortgage should not be satisfied or extinguished but should continue as a security for that debt.

The foregoing is of course entirely sufficient to dispose of this appeal. But we cannot forbear to point to a further consideration, namely, although this mortgage had become extinguished in law so that it no longer constituted a lien upon the land enforceable by the defendant, yet if afterwards the appellant obtained from the bank a loan of money upon the agreement that the mortgage should stand as security therefor, which of course it ostensibly might until discharged of record, the appellant would hare no standing in a court of equity to ask its affirmative aid to remove such a cloud from his title without himself doing equity by repaying the money which he had received upon the faith of such supposed security. Hart v. Smith, 44 Wis. 213, 218; Hill v. Buffington, 106 Wis. 525, 82 N. W. 712; Havenor v. Pipher, 109 Wis. 108, 85 N. W. 203; Blackman v. Arnold, 113 Wis. 487, 89 N. W. 513.

There was nothing to suggest insolvency on the part of Wason at the time of these transactions and they are in no wise connected with the bankruptcy. Hence the trustee in bankruptcy has shown no rights greater than those which Wason would have had.

By the Court. — Judgment affirmed.