132 Wis. 638 | Wis. | 1907
The complaint as regards the corporate existence of plaintiff was sufficient on demurrer. The allegation that plaintiff was a Wisconsin corporation fairly suggested that it was a corporation organized and existing under the laws of the state of Wisconsin.
The liberal rule, which to a very great extent promotes the administration of justice, doing away with the otherwise obstructive efficiency of technical unmeritorious and so un-prejudicial defects, supplies in a pleading all essential matters not expressly stated when from the express statements they may reasonably be supposed to exist and to have been intended by the pleader to be included in such statements. Miller v. Bayer, 94 Wis. 123, 68 N. W. 869; Kliefoth v. N. W. I. Co. 98 Wis. 495, 74 N. W. 356; Miles v. Mut. R. F. L. Asso. 108 Wis. 421, 84 N. W. 159; Emerson v. Nash, 124 Wis. 369, 102 N. W. 921.
Eeasonable doubts respecting the pleader’s purpose as to matters which the adverse party is fairly entitled to have solved to enable him with due consideration to adopt a course of action in respect thereto, must be presented to the court, for the purpose of obtaining enlightenment, by motion to make more definite and certain, not by challenging the pleading for insufficiency. That is according to the letter and spirit of the Code and of judicial policy as well.
■ The supreme test to be applied to a pleading as regards mere sufficiency is this: Will it reasonably admit of a con
If it were conceded that the complaint is barren of any allegation of title in respondent to the coupon, the pleading would be yet good for a foreclosure of the mortgage, since, unquestionably, there is a sufficient allegation of a transfer to, and ownership by, respondent of the note and security. Moreover, the mere production of the paper by respondent as owner with a sufficient indorsement to transfer the note raised a presumption that it was acquired before due and when the last interest coupon was presumably an incident thereof, as will be seen hereafter. Wayland Univ. v. Boorman, 56 Wis. 657, 14 N. W. 819.
Failure to allege, expressly, how respondent and its as-signee came to deal with the securities as held in trust solely for Catherine C. Benjamin was immaterial. The interest of Fred W. Benjamin in the property was that of a cestui que trust. The legal title was in the trustee. It having conveyed such title to respondent in trust for Catherine C. Benjamin after Fred W. became of age, presumably the trust as to him was in some proper manner discharged, leaving the whole equity in the property in Catherine 0. But if that were not so and the treatment of the property as solely held in trust for Catherine 0. was in violation of the trust for Fred W., the legal title vested in respondent as trustee for him with power, subject to the protection of his rights, to foreclose the mortgage. It was not a case in any event where it was necessary for Fred W. to be before the court for his due protection, since he could hold respondent liable as his trustee, or have other efficient remedies. 2 Perry, Trusts
. Uo error was committed by receiving the note in evidence. There was no infirmity of proof respecting the assignment thereof to respondent There was, as indicated in the statement, a formal assignment of the note together with the interest and the mortgage, indorsed upon the back of the note and signed by the Wisconsin Trust Company by its vice-president. Uo proof was required, in the absence of any showing to the contrary or any foundation thereof in the pleadings, that the assignment was in fact made according to its purport. There was no denial of the execution of the assignment or the signature thereto under oath. Therefore, such execution and signature was not open to impeachment. Sec. 4192, Stats. (1898)-. That rule applies where the signature is by one not a party as well as to a party to the action. Parroski v. Goldberg, 80 Wis. 339, 50 N. W. 191.
ETo proof was necessary that the corporate officer purporting to have signed the transfer of the note had authority to do so. The president, or in his absence or inability to act the vice-president, of a business corporation is a usual officer as managing agent to execute such a paper as the one in question, and it is implied in case of a transfer so signed that the officer had authority to act in the matter in the absence of proof to the contrary and notice to the person receiving the paper.
“The authorities are to the general effect that such a power is implied in law, and consequently need not be proved by an innocent person claiming under its exercise.” 4 Thomp. Oorp. § 4638.
Any person claiming under such exercise is presumed to be innocent of any wrong in the matter in the absence of evidence to the contrary.
Judicial and other expressions out of harmony with the foregoing may be found in the books but they are not to be regarded with favor. The law, especially so far as it is competent for courts, unrestrained by legislative enactments, to declare and administer it, promotes rather than obstructs legitimate business operations. If it were not as indicated the modern methods of doing almost all kinds of business through artificial persons would be very prejudicially handicapped. The custom of a particular corporation, or of corporations generally, as to the manner of doing business involving contractual obligations, reasonably calculated to suggest the existence of express authority on the part of the actor in the matter so as to mislead innocent persons, and which justly ought to estop the corporation from denying the existence of such authority, in the absence of any statute to the contrary, has the force of law and raises for the protection of such persons a conclusive presumption of such authority. St. Clair v. Rutledge, 115 Wis. 583, 92 N. W. 234.
While, as we have seen, there was an assignment in terms of the mortgage indorsed on the back of the note, that was not necessary to a transfer of the security to respondent. The mere indorsement of the note by the payee and delivery thereof with the mortgage to the respondent, carried title to the indebtedness and the mortgage to the latter, enabling it to prosecute the foreclosure. Croft v. Bunster, 9 Wis. 503;
There was ample evidence of a transfer of the coupon to respondent. Therefore that instrument, though it was detached from the note, was payable to order, and had no in-dorsement thereon, was properly received in evidence, and the finding showing competency of respondent to have judgment in respect thereto was proper.
True, a coupon may be detached from the note to which it refers and be negotiated and enforced without a production of the latter, substantially as an independent promise to pay and with substantially the same incidents as characterize commercial paper — where the coupon is in negotiable form; but before due, presumably, it is a mere incident of the note and so long as attached thereto passes, in case of a transfer of the principal obligation, as such incident without any special assignment, indorsement, or conveyance thereof. In case of an assignment of the note, as in this instance, long before the due date thereof and production of such note and the coupon as separate instruments after the due date of both, the presumption is that they were attached together at the time of the transfer and that the coupon was detached at , the appropriate time for the mere purpose of collecting the interest. That is in harmony with the rule that a coupon once detached and negotiated is no longer an incident of the principal obligation, but is substantially an independent claim. Oases of the latter sort, of course, are numerous and the law in respect to the matter well understood. Nesbit v. Riverside Ind. Dist. 144 U. S. 610, 619, 12 Sup. Ct. 746; Edwards v. Bates Co. 163 U. S. 269, 272, 16 Sup. Ct. 967; Nat. Exch. Bank v. H. P. & F. R. Co. 8 R. I. 375; Ide v. Conn. & Pass. Rivers R. Co. 32 Vt. 297; Comm’rs v. Aspinwall, 21 How. 539, 546.
In the light of the law, as stated, possession of the note and coupon by respondent with proof of ah assignment of the former to him long before it became due prima facie established ownership of the obligation for payment of the principal debt and of the interest as well.
The finding in respect to notice of lis pendens having been duly filed in the foreclosure action must be regarded as a verity, since no exception was taken thereto.
The finding that the mortgaged premises cannot be sold in parcels without diminution of the realizable value of the whole seems to be sufficiently supported to preclude disturb-anee of the judgment in respect thereto.
The findings of fact and the proof indicate that the mortgage interest was subject to leases existing at the time the mortgage was given. The conclusions of law provided for a judgment directing, conditionally) a sale of the “mortgaged premises.” The judgment provided for, conditionally, a sale of “the premises subject to the mortgage described in the complaint and findings, to wit: [Describing the real estate by lots and blocks.]” The existence of outstanding leases
It were better, perhaps, since the proof showed and the court decided as matter of fact that there were outstanding leases taking precedence of the mortgage, that the judgment had expressly authorized a sale of the interest in the realty covered by the mortgage and that only. It may be that the term “mortgaged premises” should be so construed. We are inclined to give it that effect for the purpose of rendering it definite and certain.
The mere fact that the owners of the leasehold interest were not before the court did not militate against authority to render judgment. Their interests were not affected by the mortgage. The judgment could not in any event legitimately prejudice them. The owners of senior incumbrances on property are not necessary parties to a foreclosure of junior incumbrances. Strobe v. Downer, 13 Wis. 10; Straight v. Harris, 14 Wis. 509; Hekla F. Ins. Co. v. Morrison, 56 Wis. 133, 14 N. W. 12.
It is conceded that the amount adjudged to be due for principal and interest at the date of the judgment was excessive to the amount of $47; that the total indebtedness should have been stated to be $21,883.75 instead of $21,930.75. It is further conceded that the judgment erroneously provided for interest after its date at the rate of six per cent, per annum upon the amount of the mortgage indebtedness, solicitor’s fees, and costs; that the rate should have been five per cent. After the appeal was taken and such conceded errors were brought to the attention of respondent, it duly filed a release of the excess in the amount adjudged to be due and the excessive rate of interest authorized. That cured such errors so far as respondent, of its own motion, could well do so under the circumstances.
It is further conceded that the judgment erroneously provided for a recovery of interest at the rate of ten per cent.
The foregoing covers all matters presented in the briefs of counsel which seem to require any special attention. The judgment appealed from must be modified by changing the amount adjudged to be due at the time of the entry thereof to $21,883.75, and changing the rate of interest thereon and on the solicitor’s fees and costs after judgment to five per cent, per annum, and changing the rate of recoverable interest upon future payments of taxes or tax liens to five per cent, per annum, and as so modified it must be affirmed with costs in this court in favor of -the appellant.
By the Court. — So ordered.
