69 Wis. 28 | Wis. | 1887
There can be no doubt but the court below was right in ordering the deeds and mortgage mentioned in
The objection to the judgment that it awards costs personally against the executors cannot prevail, because it appears that, before the appeal was perfected, these costs were duly remitted of record. If there was any error in awarding them against the executors personally, in the first instance, the error was cured before the appeal was taken. The costs should have been included in the judgment, and paid out of the estate of Eosina Hecht.
In this case the mortgagor, Eosina Hecht, died during the pendency of the foreclosure action. The action was revived, and prosecuted to judgment, against the executors of her estate. The modified judgment for the deficiency, reported due after a sale of the mortgaged propertjq was rendered in November, 1883. This judgment was certified to the county court to be paid, with other claims, out of the estate, in conformity to the intimation in 58 Wis. 212. See, also, sec. 3846, E. S., which prescribes how judgpaents in
This action was commenced in January, 1884; its main, object being to cancel and remove the fraudulent conveyances above referred to. The complaint, as a part of the relief asked, prayed that this claim of the plaintiff, with interest, be declared a charge upon the iand in question, in common with all the debts of the estate of Rosina Hecht remaining unpaid, to be enforced in the county court according to the statute and rules of practice of that court relating to the payment of debts, and the settlement of the estates of deceased persons. The judgment, among other things, orders and adjudges that the title of this real estate be, and the same is, unaffected by the conveyances ordered to be canceled; and declares that the title to such real estate remain in and be the property of the estate of Rosina Hecht, and subject to the payment of debts against her estate; “ but that the plaintiff, by this suit and proceeding, has acquired and has a special lien and charge thereon for the payment of ” his debt with interest. The legal effect of this clause would seem to be, doubtless was intended, to make the plaintiff’s judgment for deficiency a superior and paramount lien upon the real estate over- other claims. But we know of no authority under our statute for giving it such priority. Sec. 3846 clearly provides that the judgment “shall be paid in the same manner as other claims duly allowed against the estate, except as provided in the preceding section.” The exception in the preceding section does not include this judgment for deficiency. That section mainly relates to a lien, or right of lien, upon real or personal property, existing at the time of the death of the decedent. This judgment stands upon the same footing as any other judgment recovered in an action pending against the decedent at the time of his death. It is plain that the statute intends it shall be paid with other allowed claims.
By the Court.— The judgment must be reversed and the cause remanded with directions for the circuit court to enter a judgment in conformity to this opinion.
A motion for a rehearing was denied June 1, 1887. -