117 Wis. 18 | Wis. | 1903
Sec. 2313, Stats. 1898, provides that a chattel mortgage of personal property, exempt frbm execution, shall not be valid unless signed by the wife of the mortgagor,
“By means of the payment the mortgagé is not satisfied and the lien of'it destroyed, but equity regards the person making the payment as becoming the owner of the mortgage, at least for some definite purposes, and the mortgage as being kept alive, and the lien thereof as preserved, for his benefit and security.” Id.
This being the principle, it necessarily follows that in the present case the former valid mortgages must be regarded in equity as having been equitably assigned to the defendant for his protection. Those mortgages having been signed by the wife and her signature duly witnessed, she cannot object to their enforcement by the equitable owner. The lien thus enforced is not the lien of the new and void mortgage, but the lien of the old mortgage, which she herself placed upon the property with all the required legal formalities, which equity regards as still alive, and equitably the property of the defendant.
, Had the wife refused to sign the new mortgage at all, it is not seen how the result could have been different. The owner of the property having borrowed money of the defendant under his agreement that it should be used to pay off a valid mortgage thereon and that defendant should have a new one in place thereof, and the money having been in fact so used, a court of equity would doubtless keep alive the valid mortgages for the defendant’s protection to meet the very contingency of the wife’s refusal to sign. The wife is not, there
From this view of the case it appears that, if the facts stated in the counterclaim were proven, the plaintiffs would not, in equity, be entitled to have the apparent lien of the second mortgage set aside, except upon condition that the amounts due upon the valid mortgages (now equitably owned by the defendant) be first paid. This would relieve the property absolutely of all that part of the apparent lien of the second mortgage which is not included in the valid mortgages, and would fully preserve the equitable rights of the defendant. This result can be accomplished without the presence of the former mortgagees. Under the allegations of the counterclaim they have no interest, either actual or apparent, in the matter. They have been fully paid and the mortgages finally discharged so far as any rights which they could possibly claim under them are concerned.
The case, however, has never been tried upon evidence. There is a reply to the counterclaim, by which all the equities claimed by the defendant are denied. This being the case, we do not feel justified in directing judgment for the defendant, but shall remand the case for trial of the issues raised.
By the Court. — Judgment reversed, and action remanded for a new trial.