Pierce v. Kneeland

16 Wis. 672 | Wis. | 1863

By the Court,

Cole, J.

It appears to us that the stipulation entered into between Pierce and the mortgagors Lewis and Taylor, in reference to releasing portions of the mortgaged property, is not available to the defendants. It was not an agreement which professed to run to the mortgagors and assigns. It was personal in its character, and therefore did not inure to the benefit of subsequent purchasers. For a person might be very willing to enter into an agreement with his immediate grantee to release a part of the property on being paid a portion of the mortgage debt, without being willing to make a similar stipulation with any one who might subsequently purchase the property. And furthermore, it is very clear that the mortgagors themselves could insist upon the release, only upon strictly performing the conditions of the bond and mortgage ; by making all payments of principal and interest as they became due. It appears that default was made in these payments. Interest and principal were not paid when they became due. So that even if the stipulation was one running to subsequent purchasers, and not personal as already intimated, yet the conditions were not performed upon which the release was to be made.

It is objected that the court erred in allowing an amendment of the complaint, so as to set out the covenant to pay solicitor’s fees. The mortgagors covenanted in the mortgage itself, that in case of foreclosure they would pay to the mortgagee, in addition to the taxable costs in the suit, one hundred dollars solicitor’s fees. We think the court had ample authority to make that amendment to the complaint, and that this authority was rightfully exercised. It could not possibly work any surprise on the defendant. The mortgage was on record, and they were bound to take notice of the existence of this covenant.

Again, it is objected that the covenant could not be enforced against subsequent purchasers, But we fail to see any good reason why it could not. In case of foreclosure the property was bound for the payment of the one hundred dollars solicit or’s fees, as much as it was for the taxable costs. The defendants purchased the mortgaged property subject to the incum-brance, and it is certainly strange that they can relieve themselves from conditions in the mortgage which were binding upon their immediate grantors.

We think these remarks dispose of all the material objections in this case.

The judgment of the circuit court is affirmed.