118 Wis. 368 | Wis. | 1903
Plaintiff obtained a decree awarding to her the full relief claimed in her complaint. She challenges the judgment only because of the relief given to Wyckoff, not affecting her in any way. We are unable to see how she can be deemed to have a sufficient interest in that matter to enable her to maintain her appeal. It is entirely immaterial to her whether Wyckoff pays the amount adjudged to be due her, or whether the vendee in the land contract pays the same. It is entirely immaterial to her what the rights of such vendee and Wyckoff are between themselves, so long as the right adjudged to either in no way abridges that claimed by or adjudged to her. There is no such abridgment; therefore it necessarily follows that she is in no way prejudiced by the judgment, regardless of what the rights are of the other parties to the litigation. It by no means follows that every party to a judgment has a right to appeal therefrom merely because it is wrong. The right of appeal is confined to parties aggrieved in some appreciable manner by the decision involved. When a person not so aggrieved appeals, he is deemed not to be within the provisions of the appeal statutes. In such circumstances the court obtains no jurisdiction to consider any matter raised by the appeal. Upon its attention being called to the situation, the rule is to dismiss the appeal. Amory v. Amory, 26 Wis. 152. That must be the result in this case as to plaintiff’s appeal.
It is claimed on the part of appellants Oisefos that the principles of subrogation do not apply to Wyckoff, as regards the rights of the vendee in the land contract. That, as it seems, may be tested by a concise statement of such principles and by testing the facts thereby. They are purely equitable in character. The sole purpose thereof is to prevent one per
Testing the case in hand by what we have said, we find all the essential facts referred to without serious difficulty. The debt due upon the laud contract was that of Oisefos. The legal title to the three forties of land covered by the contract were held by plaintiff to secure payment of the amount due thereon. The equitable ownership of the forty claimed by Oisefos was as firmly so held as the equitable title to the two forties possessed by Wyckoff. There was no way by which the latter could protect his equity except by paying the indebtedness of the former. The equity of redemption as to the two forties was inseparably connected with that of the other forty. The latter could not be redeemed from without redeeming from the other, and vice versa. Wyckoff was under no obligation, legal or equitable, in case of assuming the burden of redeeming all of the land in order to preserve his own interest, to bear it permanently, so far as that would benefit Oisefos, without any consideration moving directly or indirectly from him to pay therefor. Such assumption could not be deemed voluntary and subrogation fail on that account, since the element of necessity as to Wyckoff to prevent the loss of his own property moving him to action would be inconsistent therewith.
The judgment in this case was evidently rendered upon the theory that the sole essential to the applicability of the doctrine of subrogation is that the person to be subrogated shall for his own protection pay the debt of another. Such, obviously, is not sufficient: There must be, in addition to legal
Counsel for appellants Oisefos insist that the result of the judgment complained of, should it stand, will be one'which, as stated, subrogation cannot be legitimately used to produce; that whereas Wyckoff purchased only the value of the equity of redemption as to the two forties of land, the value thereof, after deducting from the full value of the land the amount of the incumbrance chargeable thereto, the judgment says that he shall have, in addition thereto, the whole of - the forty
In the light of the foregoing it must be held that the trial court, instead of decreeing to respondent the privilege of redeeming from the land contract and thereby acquiring all the rights of plaintiff therein, the limit of acquirement by such redemption, as against Oisefos, should have been sufficient to indemnify respondent, for the cost of making the redemption in excess of the value of his land at the time of the execution sale over what he paid for the equity therein.
On the question of how far it is necessary for subrogation to go in Wyckoff’s favor as indemnity, appellants’ counsel are in error. That comes from a wrong view of the value of the equity of redemption in the two forties at the time of the execution sale. If it were the full value of the land less the-entire amount due upon the land contract, counsel would be-right. But it is the full value of the land at the time of the sale, less such proportion of the indebtedness as such full value bears to the then value of all the land covered by the contract. The entire amount of the unpaid purchase money upon the contract cannot be deemed to have been a lien upon the two forties sold at the sheriff’s sale, because the other forty was the homestead of Oisefos and wife, and in case of a sale under a mortgage foreclosure, it would not be chargeable with the lien of the foreclosure judgment, except contingent upon the proceeds of the other lands covered not being sufficient to discharge the judgment, if they could be sold separate from the homestead without injury to the interests of the parties.' We have no such situation to deal with here. The rights of the owner of the homestead in such circumstances exist by force of the statute (sec. 3163, Stats. 1898). White v. Polleys, 20 Wis. 503; Hanson v. Edgar, 34 Wis. 653. In case of a prior mortgage lien covering a homestead and other lands being paid off by the owner of a junior lien
The result is that appellants Oisefos are entitled to the benefit of the unused value of the two forties of land, that is, the value which respondent did not pay for at the execution sale to indemnify themselves against being made poorer by being compelled to make up such unused portion in order to save the homestead forty. Respondent is entitled to the benefit of plaintiffs lien on the homestead forty to indemnify himself against loss by being compelled to contribute more than such unused value of the two forties to save what he acquired at the execution sale from the plaintiffs lien. The parties, by reason of their relations to the land covered by the contract, and the facts, are entitled to indemnity against loss, each against' the other. That is the law of subrogation, and as far as it goes. In order to properly work out the equities as stated, it will be necessary to determine the value of the two forties of land covered by the execution sale at the time thereof, and the then value of the forty possessed by Oisefos. The equities must be adjusted as of the instant their relations commenced.
It seems that the value of the two forties of land, if to be governed by the general rule, should be taken to have been
In order to render a proper decree, further evidence must be taken and findings made. The amount adjudged to be due upon the land contract must be apportioned between the two holdings of land as of the time of the execution sale, as- wo have indicated. A judgment should then be rendered in form in favor of the plaintiff and against all the defendants, with a provision that upon payment being made to her within the time limited therefor, by either party interested in the equity of redemption, she shall make such party a deed in harmony with the terms of the land contract, subject to the right of the other party interested in the equity of redemption to a deed, from such grantee, of the land to which his equity re
By the Oourt. — Tbe judgment is reversed on tbe appeal of appellants Oisefos, and tbe cause remanded for further proceedings in accordance with this opinion. Tbe appeal of tbe plaintiff is dismissed.