55 Wis. 607 | Wis. | 1882
There was a supplemental answer, and it was proved and found by the court that during the pendency of the suit the plaintiff, the assignee of the mortgage, by a proper conveyance for that purpose, quitclaimed the mortgaged premises to the defendant, the mortgagor, and thereby satisfied and discharged the mortgage sought to be foreclosed in this action. The learned counsel of the appellant testified that, pending the suit and at the time such quitclaim deed was executed, he had purchased and become the owner, and then was the real owner and holder of the
In answer to this it is urged that when a cause of action is transferred pending the suit the action may be continued in the name of the former plaintiff, and cites sec. 2801, E. S., and contends that such former plaintiff thereafter remained a merely nominal party, without interest or right, and that no settlement, satisfaction, or discharge of the cause of action by him can affect the rights of the real owner thereof, either in the subject matter of the action, or in the relief he would be entitled to in the action as the real party plaintiff. But this statute can have no such interpretation. Sec. 2800 provides that no action shall abate by any occurrence or event if the cause of action survives; and sec. 2801 provides that “ in case of a transfer of interest the action may he contmued by or against the original party, or the court may direct the person to whom the interest is transferred to be substituted in the action or joined with the original party, as the case requires.” (1) The action does not abate by such an occurrence ■or event as the transfer of the interest of the plaintiff; (2) the action may be continued in the same plaintiff; or (3) the real party in interest may be substituted or joined. The language is “ may be continued,” and not “ may continue.” Both in the language and obvious construction of these provisions, the action of the court is clearly implied (1) in allow
By this reasonable construction the court, the opposite party, and all persons interested may know who the real party in interest is at all times during the pendency of the suit and when judgment is rendered, and who is responsible and has authority to settle, compromise, or receive payment, satisfaction, or discharge of the cause of action; and no one will be entrapped, defrauded, or injured by concealed interests or secret trusts, as might possibly be the case, even here, by a different construction of the statute. Where, therefore, it, appears to the court that the plaintiff has transferred his cause of action pending the suit, the court majr allow the action “ to be continued ” in the name of the original plaintiff, or substitute the name of the person to whom it is transferred, or join such person with the original plaintiff. Here there was no disclosure of any transfer of the bond and mortgage, except at the trial, and, by the testimony of the learned counsel on the stand as a witness, long after the discharge of the mortgage by the plaintiff, and no action of the court was had to continue the suit in the name of the original party plaintiff to the use of the pretended assignee, or to substitute or join such assignee therein. The learned counsel, by not thus disclosing his interest, has allowed the plaintiff t.o exercise the very fullest authority in the conduct and disposition of the action, and the paramount right to discharge the mortgage, which is the subject matter of the action, and by his silence and the concealment of his interest has allowed the defendant, the mortgagor, to believe that the plaintiff was
Under such circumstances, if the statute was not perfectly clear for his protection, the principle recognized by this court in Mallory v. Mariner, 15 Wis., 172, would be sufficient to that end. In that case the mortgagor was onee informed of the full authority of an attorney of the mortgagee to settle the suit of foreclosure, and receive satisfaction of the mortgage in a certain manner; and when the suit was so settled, and the satisfaction was so received, the mortgagor had not been informed otherwise in relation to the authority of the attorney. The mortgage was declared satisfied and discharged, and the mortgagee restrained by injunction from foreclosing it; and in the next case between the same parties (15 Wis., 177), a judgment against the mortgagee, for the penalty for refusing to satisfy the mortgage of record, was-affirmed. The principle seems to be well established that the mortgagor may pay or settle with the person having the apparent authority to receive satisfaction of the mortgage; and a discharge of the mortgage thus obtained will prevail against those having a .secret, concealed, or reserved interest in the mortgage. See, also, Jackson v. Crafts, 18 Johns., 110.
It is contended and it may be that the discharge of the mortgage simply is no satisfaction of the debt, or evidence of its payment. This suit is in equity for the foreclosure of the mortgage, and certainly cannot be treated as a suit at law on the bond, or converted into such a suit by the widest liberality or latitude of amendment. Sweet v. Mitchell, 15 Wis., 641. A personal judgment for deficiency even in such a case can only follow foreclosure and sale. The action is therefore for foreclosure and nothing else, and if the mortgage is discharged the action is gone. It is immaterial, therefore, whether such a discharge is satisfaction of the debt or not, so far as this action is concerned. It is contended further, by the learned counsel of the appellant, that
The adjudicated cases in which this question has arisen are very few, so far as I have been able to ascertain, and, probably, because there is very little question about it, or this method of discharging mortgages is not common. The former, and what might almost be called the common law relation of mortgagor and mortgagee to the legal estate or title in fee, and still recognized in many of the states, and in the state where the plaintiff and grantor in the quitclaim deed resided, has been so changed by our statute and practice that the fee no longer passes to the mortgagee, even upon condition broken, and can only pass by means of the mortgage, by foreclosure and sale. Wood v. Trask, 7 Wis., 506, and many other cases in this court. On the other hand, when the mortgagee has gone into the possession of the mortgaged premises under the mortgage, the mortgagor has not sufficient title in fee or otherwise, to bring ejectment against him and obtain the possession (Tallman v. Ely, 6 Wis., 244; Hennesy v. Farrell, 20 Wis., 42); and to the extent of the mortgagee’s interest, whatever it may be called, and for his protection, the possession of the mortgagor and those holding under him is the possession of the mortgagee, and they are estopped from denying his title or of claiming adversely to him. Avery v. Judd, 21 Wis., 262. Whatever interest in the land the mortgagee obtains, less than the fee, under these decisions, and whatever it may properly be denominated, it is certainly an interest, and a substantial interest, which may pass by a conveyance. By our statute (sec. 2203, R. S.), “ conveyances of land, and of any estate or interest therein, may be made by deed,” etc. It follows, therefore, that, according to the old or the modern theory of mortgages, a quitclaim deed by the mortgagee will operate as a discharge of the mortgage. 1 Hilliard on Mortg,,
By the Gourt.— The judgment of the circuit court is affirmed.