15 Wis. 571 | Wis. | 1862
By the Court,
We do not see any reason why the appellant William B. Jams can complain of this judgment The judgment itself expressly excepts from its operation the paramount title set up by Jarvis in his answer, and can therefore never prejudice his rights under that title. But according to his own theory, the mortgage of his mother to the plaintiff was sufficient to convey her life estate, which he claims to have granted to her, and as he subsequently took a release from her, he was properly made a party to the foreclosure suit, to bar whatever right he might claim by virtue of the release. After the life estate ceases, he can assert his title under the tax deeds, if he has any, as against the title claimed by the plaintiff
His counsel object to the judgment because it saves only his rights under the tax deeds, whereas, it is said, he might have other titles. But the answer is, that if he had other titles he should have alleged them. Courts are only bound to protect such rights as parties set forth. And having claimed title only through these tax deeds, paramount to this mortgage, the court was entitled to assume that that was all he claimed, and having excepted that from the effect of the judgment, he cannot now be heard to object that he might have other titles. It would be very difficult to sustain any
It was further claimed by his counsel, that the life estate of his mother was forfeited by her acceptance of a deed from a stranger, under the common law rule, that if the tenant for life or years admitted of record that the fee'was in a stranger, he forfeited his estate. The authorities cited show that such was the common law rule. But no case was referred to, and we have not been able to find any, where the doctrine was ever adopted in this country. The question of forfeiture by the tenant’s attempting to convey a greater estate than he had, has sometimes arisen. And it has universally been assumed, either directly by the courts, or else through a statutory change of the rule, that the reasons upon which it was founded did not exist in this country, and that the rule itself ought no longer to prevail. Chancellor Kent states in his Commentaries, vol. 4, p. 456, [427] that “ such forfeitures by the tenants of particular estates have become obsolete in this countryand in a note upon the same page, that the “ extraordinary industry and great experience of the author of the Abridgement and Digest of American Law, was not able to lead him to any case in our American courts in which there had been a forfeiture of the estate of a tenant for life or years by reason of a breach of duty as tenant by way of plea or default upon record.” If it were necessary to decide directly upon the question, it might, therefore, well be doubted whether it should not be held that this common law rule does not prevail in this country. But even if it did prevail, it is very certain it would not be extended to any case not coming exactly within its letter, and the authorities referred to show that, by the rule itself, the act of the tenant causing the forfeiture must have been done in a court of record, and that was not the case here. True, it may be said that the acceptance of a deed and putting it on record, under our law, is an act equally conclusive as an admission in a court of record. But as the reasons of the law do not exist here, no case can be said to be within the reason of it, and the only question must be whether it is
The only ground of error relied on in behalf of the mortgagors is, that it did not appear that any sufficient notice was given of the election of the plaintiff to have the whole sum become due, or any sufficient demand made. The complaint avers notice and demand, and this averment is not denied, but the defendants expressly admit-the service of a notice “purporting to be signed by the plaintiff.” Their real ground of objection seems to be, that as the plaintiff resided in the state of New York and they in the state of Wisconsin, and as the notice did not indicate any one in this state to whom the payment could be made, they should have been allowed a reasonable time to make the payment in New York. What the effect might have been, if the mortgagors had proved that they were ready and willing to pay and asked only to have some one authorized to receive it, or that they had immediately sent the money to be paid to the plaintiff in New York, it is not necessary to determine, as there is no pretense that any of these things were true. And the pleadings themselves preclude any such question. For the complaint avers not ■ only the notice and demand, but that the mortgagors refused to pay, and this is not denied. Certainly, after this, there can be no question about their having a reasonable time to reach the plaintiff with the money.
We think the judgment sufficiently recognizes the right of redemption, in directing the certificate of sale to specify it. The judgment is affirmed, with costs.
