McMillen v. Mason

71 Wis. 405 | Wis. | 1888

Tayloe, J.

Upon a careful reading of the complaint, it is difficult to find any sufficient allegations in the complaint which would entitle the plaintiff to any relief from a court of equity. There is certainly nothing in the case made by the complaint which would justify the court in granting the relief prayed for as to the $300 mortgage. There are no allegations which tend to show that it ever has been paid, and nothing stated which could hinder the defendants the Masons from purchasing it. It was a lien on the premises to which all other claims against the estate of Daniel Boyle and Margaret Boyle are subject, and superior to any claim of the plaintiff against said estate. Admitting that the $300 and tíre $150 and $55 were all advanced to redeem the land from the claim of O’Keefe, there can be no priority of the claim over the mortgage, especially in the absence of .any allegation that there was an agreement made between the parties that all the money so advanced should be equally a lien upon the lands redeemed. The complaint is entirely silent as to any such agreement, and simply alleges that after the money was furnished a mortgage was given to secure the payment of the $300. There is not enough in the complaint to show that the plaintiff was entitled to a lien on the land for either the $150 advanced by Eothin or for the $55 ad vanced by himself. There is certainly nothing stated in the complaint showing any necessity for the construction of the will of White, and if there was anything stated which would make a construction of the will a proper relief it would seem that the widow White should have been made a party defendant.

Taking all the allegations together, they do not call for the interference of a court of equitju

The plaintiff shows that his claim for the $55 and interest has been allowed against the estate of Margaret Boyle, and that the estate is ample to pay the claim. His remedy is clear in the county court. He can compel the administrator to pay the debt out of the estate which has come to his hands, if there was sufficient personal estate for that purpose, or from the proceeds of the sale of the real estate, if the same has in fact been lawfully sold, and if it has not he could procure an order from the county court for the sale of the real estate to pay the debt, unless he has lost that right by delay.

As to the claim for the $150 and interest, if his complaint be true, he has a judgment whigh not only subjects to sale thereon all the interest Daniel Boyle has in the 160 acres of land, but also all the interest the heirs of said Margaret Boyle have in said lands; and, so far as the sufficiency of the complaint is concerned, we must judge of it by what is alleged therein. "We remark that as to the nature of the judgment obtained for the $150 there is not enough stated in the complaint to show very clearly what it is, nor upon what grounds he was able to and did sustain his action against Daniel Boyle and the heirs at law of Margaret Boyle, deceased, and we only decide in this case that if the general allegations of the complaint are true in 'regard to this judgment, then plaintiff does not need the aid of a court of equity to enforce it. "We think the demurrer -was properly sustained.

By the Oourt.— The judgment of the circuit court is affirmed.