184 Wis. 495 | Wis. | 1924
The following opinion was filed June 23, 1924:
The court found, among other things, that on the 5th day of November, 1879, one Mary E. McLean and John McLean, her husband, executed and delivered to one Cook a promissory note for the sum of $800, payable in three years after date, with interest thereon at the rate of eight per cent, per annum, payable annually; that to secure said note the makers executed a mortgage upon certain real estate belonging to Mary E. McLean, which mortgage was duly recorded; that the interest on said note was regularly paid until November 16, 1891; that the parties then agreed to reduce the interest to seven per cent., and that the interest 'thereafter was regularly paid until November 5, 1903; that thereafter one year’s interest was paid on November 5, 1909, and that the only interest paid thereafter was on March 1, 1918, the amount being $10; that all of the payments of interest aforesaid were duly indorsed on the note; that Mary E. McLean died intestate on May 6, 1902, leaving as her only heirs at law Addie R. Flambwrg, Eva L. Bortle, Louisa L. Rice, Ervin C. McLean, and her husband, John McLean; that Louisa L. Rice died before the commencement of this action, leaving as her heirs at law her children, Florentine Rice and Claude Rice; that the plaintiff and John McLean were married on October 10, 1902; that one Mary E. Fielding, who became the owner of the note and mortgage in question upon the death of the mortgagee, Cook, on the 23d day of November, 1903, assigned and transferred the same to the plaintiff; that upon the death of the said Mary E. McLean, John McLean became possessed of said real estate as tenant by
The appellants, in the court below, pleaded the statutes of limitation, and the only question involved on this appeal is whether or' not the note and mortgage are barred by such statutes. Under, the provisions of sec. 4220, Stats., an action upon a sealed instrument, where the cause of action accrues within this state, with certain exceptions not applicable here, must be commenced within twenty years. Under the provisions of sec. 4222 an action on a note must be commenced within a period of six years after the cause of action has accrued. Sec. 4248 provides as follows:
“If there are two or more joint contractors or joint executors or administrators of any contractor no one of them shall lose the benefit of the provisions of this chapter, so as to be chargeable, by reason only of any payment made by any other or others of them.”
The note in question, while executed for the benefit of the separate estate of Mary E. McLean, the owner of the mortgaged property, was a joint note as to the payee or any subsequent owners. John McLean also joined in the mortgage, which would subject any future interest which he might obtain in the real estate during the life of the mortgage to the lien thereof. Mary E. McLean, having died on May 6, 1902, paid the last interest upon the note in November, 1901. The action to foreclose was begun on February 5, 1923. From the time of the death of Mary
While the note became due in 1883 and while the interest thereon was regularly paid during the lifetime of Mary E. McLean, the plaintiff could have at any time foreclosed the note and mortgage for default in the payment of the principal. No agreement for extending the time of payment of the note and mortgage had ever been entered into, so that at the time of the death of Mary E. McLean her heirs at law became the owners in fee of her property, subject to her husband’s right by the curtesy and subject to the payment of the mortgage, in which default had been made in the payment of the principal and which was subject to immediate foreclosure. The mortgage constituted a lien not only upon the interests of the heirs at law, the owners of the fee; but also upon the life estate of the husband. Under such circumstances John McLean, as life tenant, took possession of the property, and at such time was liable as
Up to the time of the death of Mary E. McLean, as a joint maker of the note she was liable for the principal and the interest, and her property remained as security by virtue of the mortgage. Upon her death the owner of the mortgage had the right to pursue one of three remedies as against her: first, she could file her claim for the full amount of the note, with interest, against the estate of the deceased, and thereby recover the full amount of the personal obligation ; second, she could file a contingent claim for a possible deficiency on the foreclosure,-and then proceed with a foreclosure suit in the circuit court for. the foreclosure of the mortgage; or third, she could rely solely upon her security and the foreclosure of her mortgage. It does not appear from the record that she either filed a personal claim on the note or a contingent claim; therefore the only remedy that was left for her was h> commence a foreclosure action, under and pursuant to which the mortgaged property of the deceased would be subjected to payment of the judgment.
Upon the death of Mary E. McLean two estates were created, viz.: first, the life estate of the surviving husband; and second, the remainder in -fee in the heirs at law. The life tenant and the heirs at law are not tenants in common (21 Corp. Jur. 941, 942), nor is there any privity of contract or of estate between them. In Gindrat v. Western Ry. of Alabama, 96 Ala. 162, 11 South. 372, it is said:
“There is no privity between the tenant for life and the remainderman. He does not and did not represent them in any wise or to any extent. No affirmative act of his could cut off their rights or divest their estates.” See, also, 21 Corp. Jur. 941.
While Mary E.- McLean and her husband were joint makers of the note and were therefore joint contractors in
Sec. 4248 evidently was enacted for the purpose of modifying the doctrine which then prevailed, and which constituted, the weight of authority of the courts, that a payment by one joint contractor amounted to a payment by all, and thus suspended the operation of the statutes of limitation as to all. But the provisions of the statute above referred to clearly were not intended to cover a situation like that presented in the instant case. The owner of the life estate, as such, while under an obligation to pay the interest on the note and mortgage, was .under no obligation to pay the principal ; neither were the owners in fee under an obligation to pay the principal. Nevertheless, the remaindermen at any time could have paid the principal of the mortgage and could have enforced contribution against the life tenant for the amount of the interest which he was obligated to pay, such interest being computed in accordance with the annuity table, and the amount so paid for the benefit of the life tenant could be declared a lien on the interests of the life tenant and enforced in an action in equity. On the other hand, the life tenant was at liberty, if he saw fit, to pay the principal of the mortgage and enforce contribution against the remain-dermen for the whole amount, less the amount which the life tenant was obligated to pay as interest, also computed in accordance with the annuity table, and the amount so paid for the benefit of the remaindermen could be enforced against their interests by the life tenant in an equitable
From the foregoing it clearly appears that neither the life tenant nor the remaindermen were at any time remediless in the premises. But while the remaindermen at all times could have resorted to the remedy aforesaid, it was their privilege to permit the situation to remain in statu quo, assuming the risk of a foreclosure and taking the chance of the full statutory period to operate so as to' deprive the plaintiff of her cause of action as against them. The latter course is the one evidently chosen by the remaindermen, and, the full statutory period having elapsed, from the time of the death of the owner of the mortgaged premises, and the mortgage not having been renewed as to them, the plaintiff’s rights became effectually barred. On the other hand, it at all times was the privilege of the life tenant to pay the interest upon the mortgage, and in so doing toll the limitation statutes as to him. This course the life tenant has pursued, and by the payment of part of the interest in 1918 he effectually tolled the statute both as to his obligation on the note and on the mortgage. So that up to the time of his death plaintiff retained her right to collect upon the personal obligation of her husband, created by his having been a joint maker of the note, and his life interest in the property became subject to foreclosure and sale. However, the interest of the life tenant ceased upon his death, leaving the only remedy available to the plaintiff, as to him, that of filing a claim against his estate.
Appellants’ counsel cite the case of Ætna L. Ins. Co. v. McNeely, 166 Ill. 540, 46 N. E. 1130. In that case one Fanning executed to the insurance company a note for $1,000, and to secure the same executed a mortgage upon his property, in which his wife joined. In Illinois, at that
“We think it is also clear that a payment of either principal or interest by the widow would operate to arrest the running of the statute of limitations as to any proceeding which might be instituted under the mortgage as against her interest in the premises, but - we perceive no 'ground upon which it can be held that a payment by her without any authority whatever from the heirs who owned the fee could stop the running of the statute of limitations as against a proceeding which might be instituted against them for the purpose of reaching their interest in the premises. She held one interest in the property and they held another. The mortgage held by the insurance, company covered both of these interests. The interests of the respective parties were separate and distinct. The widow was under no obligation to pay the mortgage debt, and no obligation rested upon the heirs to do so. Neither party was legally bound to pay, and neither could be expected to do so except for the purpose of relieving his interest in the premises from the mortgage. As no joint rights or interests were held by the widow and heirs in the property, we see no ground upon which it can properly be held that their rights should be controlled by her unauthorized acts.”
The only difference between the McNeely Case and the instant one lies in the fact that in the instant case John McLean signed the note and mortgage, while in the McNeely
We therefore conclude that the plaintiff herein is effectually barred of her remedy as against the appellants by virtue of the statutes of limitation.
By the Court. — Judgment of the lower court is reversed, and the cause is remanded with directions to dismiss the-complaint as to the appellants.
A motion for a rehearing was denied, without costs, on October 14, 1924.