48 Wis. 198 | Wis. | 1880
The application for a change of the place of trial was founded on the affidavit and made in behalf of the defend
The really important question in the case is, whether the plaintiff, upon the undisputed facts, is equitably entitled to a prior lien to the extent he would have if, as assignee, he were foreclosing the $600 Martin mortgage. It is insisted by his counsel that the circumstances under which he advanced his money to pay that mortgage justly entitle him to such priority in this action, and that he should be .treated as succeeding to the rights of Martin under that mortgage. This right, it is said, is founded upon the principles of subrogation which this court has recognized and enforced in other strictly analogous cases. Morgan v. Hammett, 23 Wis., 30-40; Blodgett v. Hitt, 29 Wis., 169; Winslow v. Crowell, 32 Wis., 642-662; Mohr v. Tulip, 40 Wis., 66.
If this position is sustainable in law, it will, of course, be immaterial to inquire as to what interest or estate was encumbered by the two mortgages given Martin by Mrs. Richter and husband, April 30, 1873,'and April 22, 1874. It is assumed, for the purposes of the case, that Martim acquired some interest or lien under these mortgages upon the premises sought to be sold in this foreclosure suit. It was admitted on the trial, by the plaintiff, that Mrs. Eul (who after-wards married Henry Bichter) had her dower interest in the land described in the mortgages, at the time of her husband’s death, and that such interest continued. This admission cannot properly be disregarded, and will not be.
It is not claimed that this right of subrogation, or to a prior lien, depends upon any express agreement made with Martin that his mortgage should be assigned or kept alive for plaint
But, independently of any agreement upon the subject, it is insisted that the plaintiff has an equitable right to have his mortgage declared a prior lien; and we think this claim must be sustained to the extent of the amount due on the $600 mortgage, and the taxes paid out of the money advanced to the executors by the plaintiff. The grounds for that relief rest upon principles of natural justice and equity, which are amply vindicated in the decisions above cited, especially in the exhaustive opinion of Mr. Justice LyoN in Blodgett v. Hitt. The plaintiff loaned his money to the executors to pay off the $600 mortgage and taxes, which were incumbrances upon the property, and confessedly liens prior in right and superior in equity to any lien that Martm acquired under his mortgages of 1873-1. This $600 mortgage was given by the testator and 'wife to Mcmdin in 1869, was past due, and Martin wanted' his money. ' The plaintiff íoaned his money at the solicitation of the executors, to take it up and relieve the estate. It is true,
It is objected that in furnishing the money to discharge these incumbrances he was a mere volunteer, in whose behalf there can be no subrogation. But the plaintiff loaned his money at the request of the executors, relying upon the validity of the. mortgage which they had been ordered by the probate court to execute, and is not to be treated as a volunteer in the legal sense of that term. The case of Blodgett v. Hitt is decisive upon that point. See also Payne v. Hathaway, 3 Vt., 212. This case is distinguishable in its facts from Watson v. Wiloow, 39 Wis., 643. There the plaintiff was treated simply as a volunteer, advancing his money to pay a debt merely as an investment. Here the plaintiff advanced his money at the request of the executors, relying upon the validity of a judicial proceeding, and to discharge incumbrances upon the estate. It is not just to say that in this he was governed solely by a spirit of speculation, without regard to the advantage or interest of the heirs. Certainly it does not lie in the mouth of the heirs to say, under the circumstances, that the plaintiff was a volunteer, and is not entitled to be reimbursed out of the estate to the extent of the incumbrances removed. Uor has Martin any ground to complain because the plaintiff is substituted to his rights under the $600 mortgage. It is insisted by his counsel that he has some intervening right which will be prejudiced or defeated if this subroga
Martin does not stand in the position that Knapp occupied in Pelton v. Knapp, 21 Wis., 64. There the attempt was to revive a mortgage as to previous- payments made, so as to take precedence of a judgment already attached in Knapp’s favor. The court held that while, perhaps, as between the immediate parties, mortgagor and mortgagees, it might be competent to revive the mortgage in favor of the party making the payments, yet this could not be done so as to displace the intervening interest of a third party; But the doctrine of that case does not seem to have any direct bearing on the one at bar, because here there is no intervening interest. If the plaintiff is subrogated to Martin’s rights under the $600 mortgage, Martin has precisely the same security he had before this mortgage was paid: no more, no less. So far as the mortgages given by Mrs. Eichter and husband are concerned, such priority would leave him just where he stood when they were executed. We have stated that Mrs. Eul (Eichter) had joined with her husband in executing the $600 mortgage in 1869. She only had a dower interest in the surplus remaining after the payment of that mortgage. Section 5, ch. 89, Tay. Stats. We assume that Mrs. Eichter mortgaged this dower interest to Martin by the mortgages given in 1873 and 1874. This is certainly all the estate she had in the property to mortgage at that time; and what hardship ean it be to place Martini in the same position he occupied when the $600 mortgage was paid? He has really the same rights and the same security for the payment of those mortgages that he had then. What ground has he then to complain of the subrogation of the plaintiff to his rights under that mortgage? Such
The bill of costs as taxed in this case seems excessive and incorrect. It must he corrected, and all erroneous items stricken out, when judgment is again entered. It is not necessary for us to stop and point out these erroneous charges at this time.
By the Qourt. — -The judgment of the circuit court is reversed, and the cause is remanded with directions to that court for the entry of the proper judgment according to this opinion.