Marling v. Maynard

129 Wis. 580 | Wis. | 1906

Lead Opinion

Cassoday, C. J.

The question presented is whether the judgment entered May 29, 1906, to the effect that the plaintiff recover from Maynard and A gnow and each of them the-amount due on the note with costs is justified by the mandate of this court on the former appeal. It is conceded by the plaintiff that in pursuance of that mandate the judgment of July 25, 1905, was to be reversed, and that the complaint for the foreclosure of the mortgage- and the sale of the mortgaged premises should be dismissed, and that Emma bTonunensen’s claim to such premises be established, and that the plaintiff be forever barred from having or claiming any right or title to said premises. But it is claimed on the part of the plaintiff that the mandate permitted the action to continue so far as to enable the plaintiff to recover the amount due on the note from those personally liable for its payment. There are some difficulties in the way of such contention. At common law no such personal liability could be enforced in an action to foreclose the mortgage. Thus, it was held in blew York at an early day:

“On a bill to foreclose a mortgage the mortgagee is confined to his remedy on the mortgage. The suit cannot be extended to the mortgagor’s other property, or against his person, in case the property mortgaged is not sufficient to pay the debt for which it is pledged. The mortgagee’s further remedy is at law, where he may sue at the, same time on his bond or on the covenant to pay the money, and after a foreclosure of the mortgage in equity he may sue on his bond, at law, for the deficiency.” Dunkley v. Van Buren, 3 Johns. Ch. 330; Burroughs v. Tostevan, 75 N. Y. 567, 572; Frank v. Davis, 135 N. Y. 275, 277, 278, 31 N. E. 1100.

It is only in so far as such rules have been changed by statute that personal liability can be enforced in such foreclosure action. For several years prior to the enactment of ch. 243, Laws of 1862, such rules of the common law were recognized and as modified by statute in respect to the joinder of causes of action were enforced in this state. Walton v. Goodnow, 13 Wis. 661; Sauer v. Steinbauer, 14 Wis. 70; Cary v. Wheeler, 14 Wis. 281; Jesup v. City Bank, lé Wis. 331; Faesi v. Goetz, 15 Wis. 231; Conn. Mut. L. Ins. Co. v. Cross, 18 Wis. 109. This last case indicated the change in snch rules by the statute cited. Such statute was modified from time to time, but for nearly thirty years it has been the same as found in sec. 3156, R. S. 1878 and Stats. 1898. By virtue of that statute the complaint in this action contained “a demand for judgment for any deficiency which may remain due to the plaintiff after sale of the mortgaged premises against” the Milwaukee Realty Company and Maynard and Agnew, who were “personally liable for the debt secured by the mortgage, . . . upon the same contract which the mortgage” was “given to secure.” That was the only complaint authorizing such judgment for deficiency, and that complaint was dismissed pursuant to the mandate of this court. The same section of the statutes authorized the rendition of “judgment of foreclosure and sale, and also for any such deficiency remaining after applying the proceeds of sale to the amount adjudged to be due for principal, interest, and costs,” and provided that “such judgment for deficiency ... be ordered in the original judgment and separately rendered against the party liable on and after the coming in and confirmation of the report of sale, and be docketed and enforced as in other cases.” Pursuant to such statute the judgment of July 25, 1905, was entered, and it provided that, in case of deficiency arising after applying the proceeds of sale, -the usual judgment for such deficiency could be entered against the persons so personally liable. No appeal has ever been taken from that part of the judgment. No sale of the mortgaged premises has ever been made, much less confirmed. And so no proceeds of sale have ever been so applied and no deficiency on suclr sale has ever been determined, much less adjudged. Such statute gave no authority for the rendition of the personal judgment against Maynard and Agnew entered May 29, 1906. Such personal judgment seems to have been rendered independent of the mandate and regardless of the statute. Id.; sec. 3071, Stats. 1898. It does not seem to be authorized by any adjudication of this court. See Pereles v. Leiser, 123 Wis. 233, 101 N. W. 413; Fanning v. Murphy, 117 Wis. 408, 94 N. W. 335; Fuller v. Abbe, 114 Wis. 127, 8 N. W. 825; Kuener v. Smith, 108 Wis. 549, 84 N. W. 850; Kasson v. Tousey, 96 Wis. 511, 71 N. W. 894; Witter v. Neeves, 78 Wis. 547, 47 N. W. 938; Danforth v. Coleman, 23 Wis. 528. As indicated, the personal judgment against Maynard and Agnetv is not covered by the mandate nor authorized by the statutes, nor justified at common law,, and hence is erroneous.

By the Gourt. — On the appeal of Maynard and Agnetv, so-much of the judgment of the circuit court of May 29, 1906,. as is against them, and the order of that court refusing to set aside such judgment June 28, 1906, are reversed, and the cause is remanded with directions to dismiss the action as. to such appellants,

---

Concurrence Opinion

WiNsnow, J.

(concurring). I fully agree with the decision reached in this case, but I desire to add a few words on account of what seems to me an inaccuracy in the opinion of the court. It is true, as stated in the opinion, that at common law the principle was well established that the personal, liability of the mortgagor could not be enforced in the equitable action to foreclose the mortgage. In Walton v. Goodnow, 13 Wis. 661, a foreclosure complaint, which also demanded a personal judgment for deficiency, was demurred to, and the demurrer was stricken out as frivolous by the trial court. Upon appeal this court recognized the principle above-stated as existing under the old practice, and held that the question whether it still obtained under the Eevised Statutes-of 1858 was a fair question for argument, and hence that the demurrer should not have been held frivolous. Thus it will be seen that in this case the court did not decide that the common-law principle still prevailed in this state, but simply held that it was a question open to -argument. The next case-was that of Sauer v. Steinbauer, 14 Wis. 70, which was a foreclosure action brought against the mortgagor alone, and it was held that in such case the personal liability could be enforced in the foreclosure action under the Code provision authorizing joinder of actions; but the question whether the personal claim could be joined where there were other defendants in the foreclosure action not personally liable, was not involved and not decided. The latter question was presented in the immediately following cáse of Cary v. Wheeler, 14 Wis. 281, and it was held that such joinder could not be had if the proper demurrer was taken, but that otherwise the objection was waived and both causes of action could proceed .to a judgment in the same action. These principles were followed in Jesup v. City Bank, 14 Wis. 331; Stilwell v. Kellogg, 14 Wis. 461; Faesi v. Goetz, 15 Wis. 231.

After these decisions came the enactment of ch. 243, Laws of 1862, which authorized a judgment for deficiency against the defendants personally liable in all foreclosure actions, when such judgment was demanded in the complaint. Thus, prior to the passage of this act, the law in this state was that the action at law could be joined with the foreclosure action where the mortgagor was the sole defendant, and could also be joined when there were other defendants in the absence of a demurrer on the ground of misjoinder. The common-law principle, on the contrary, was that there could be no enforcement of personal liability in any action of foreclosure. So it seems to me inaccurate, if not absolutely incorrect, to say that the common-law principle was enforced in this state by the decisions cited even in a modified form. See Endress v. Shove, 110 Wis. 133, 85 N. W. 653, where the effect of the decisions on this subject prior to the passage of ch. 243 aforesaid is explained.

This conclusion, however, does not affect the ultimate question in the present case. The complaint was a statutory complaint, under sec. 3156, Stats. 1898, which section au-tkorizes a personal judgment in a foreclosure action for any deficiency remaining after applying tbe proceeds of tbe sale of tbe mortgaged premises to tbe debt and costs. It does not authorize a personal judgment for tbe debt generally, but only for tbe deficiency after tbe application of tbe security. Where there is no security, no foreclosure, and no sale, there can be no deficiency after sale, and hence no judgment for deficiency.

MaRshall, J. I concur in tbe foregoing opinion of Mr. Justice WlNSLOW.