Moore v. Kirby

| Wis. | Mar 18, 1890

Taylor, J.

The learned counsel for the appellant insists that the judgment for the plaintiff in the action is for a sum much larger in amount than is authorized by law and the evidence in the case.

It is admitted that the mortgagor, Melvina O. Boles, was never made a party to the original action of foreclosure commenced in 1881; that on June 23,1884, when judgment was rendered in said action, she was living and the sole owner of the mortgaged premises; that she afterwards, and on the 23d of July, 1884, died, and the mortgaged property descended to her husband, Joseph Boles; that Joseph Boles died July 25, 1885, and the title to the mortgaged premises was by bis will devised to the appellant in this action, Carrie L. Kirby. So that the status of the case in May, 1886, when the appellant was made a party to this action, was substantially that no action had been commenced against the mortgagor, Mrs. Boles, or against those claiming title to the mortgaged premises under her, to foreclose such mortgage.

In this state of the case, it is very clear to us that the appellant was, at the time of the commencement of said action against her by the amendment of the process and pleadings in said action, entitled to redeem said mortgaged premises by paying the amount of the two notes,— one $500, and the other $1,500,— with simple interest from the dates thereof at eight per cent, per annum; and we are unable to see how her liability to the plaintiff can be increased by a proceeding to foreclose such mortgage, to which she and those under whom she claims were never parties. We do not think this case is one which was intended to be covered by the provisions of sec. 3161, E. S.,¹ but, if said section is applicable to a case of this kind, it does not in any way authorize the taking of a judgment against the mortgagor, or one representing her, for an amount greater than she would be liable for had an original action been brought against such mortgagor or her representative at the time of making her a party by the amendment. It seems to us unnecessary to discuss this question further. This court decided this question in Moore v. Cord, 14 Wis. 213" court="Wis." date_filed="1861-11-02" href="https://app.midpage.ai/document/moore-v-cord-6598500?utm_source=webapp" opinion_id="6598500">14 Wis. 213, 216; State Bank v. Abbott, 20 Wis. 570" court="Wis." date_filed="1866-06-15" href="https://app.midpage.ai/document/state-bank-of-wisconsin-v-abbott-6599583?utm_source=webapp" opinion_id="6599583">20 Wis. 570, 573; Coe v. Manseau, 62 Wis. 81" court="Wis." date_filed="1885-01-13" href="https://app.midpage.ai/document/coe-v-manseau-6604596?utm_source=webapp" opinion_id="6604596">62 Wis. 81, 85. The court of appeals in New York holds the same rule. See Gage v. Brewster, 31 N. Y. 220. The learned county judge clearly erred in charging the appellant with the costs included in the former judgment, with interest upon the interest included in such judgment, and with ten per cent, interest upon the amount of such former judgment, as seems to‘have been done.

We see no real objection to permitting the plaintiff to take a judgment of foreclosure upon the amended complaint in this action, limiting the judgment to the amount of the two notes, with interest thereon from their dates at eight per cent, to the date of the judgment, together with such costs as were necessarily made in making the appellant defendant in the action, and including such other costs as ■were necessarily made in bringing other proper parties before the court. These costs would also include the solicit- or’s fee stipulated in the mortgage.

The order of -the county court in regard to the taxes paid by the plaintiff on the mortgaged property seems to be in strict accordance with sec. 1158, R. S., which gives the mortgagee a lien upon the mortgaged premises for the amount of all taxes paid by him, with interest thereon at ten per cent, per annum.

By the Gourt. — -The judgment of the county court is reversed, and the cause remanded with directions to enter judgment in accordance with this opinion.