Schroeder v. Richardson

101 Wis. 529 | Wis. | 1899

Maeshall, J.

The learned trial judge misconceived the power of a court of equity in respect to interfering with tbe conduct of parties in enforcing a mortgage contract by tbe statutory remedy of foreclosure by advertisement. The rights of tbe parties as to that remedy were clearly defined by statute and by their contract at every step, and tbe court, proceeding properly, was powerless to vary tbe contract or relieve a party from tbe effect of tbe statute. The temptation to overstep tbe boundary between jurisdiction and usurpation in cases of manifest hardship is often very great, but it should be borne in mind that, while the poAver of a court of equity is quite broad where a remedy is called for and legal remedies do not meet the situation, it does not extend so far as to clothe the court with póATer to substitute judicial notions of justice for the written law. We had occasion recently, in Spengler v. Hahn, 95 Wis, 472, to refer to this subject because the learned trial court there, to meet the apparent equities of a situation between mortgagor and mortgagee, ignored a plain mandatory statute as to the proper judgment to be entered on the foreclosure of a mortgage by action. There, as here, the court believing there were special circumstances of hardship to the mortgagor, and presuming upon equity powers to justify action, attempted to lighten the misfortune of the mortgagor, forgetting that the will of the chancellor is not superior to the statute.

Defendant had a right to foreclose his mortgage as he did. Sec. 3533, B. S. 18J8, provides that the mortgagor may, within one year after the sale, redeem the lands by paying to the purchaser, his executors, administrators, or assigns, or to the then sheriff, under sheriff or deputy sheriff, the sum of money bid therefor, together with interest, etc. Sec. 3534, B. S. 18Y8, provides that if the mortgaged premises shall not be redeemed in the manner indicated in the statutes, a deed shall be executed to the purchaser, his assigns or personal representatives, or to a subsequent mortgagee Avho shall have redeemed the premises as provided by law. These provisions are plain. The court cannot abrogate, extend, or limit them. It follows necessarily that the complaint does not state a cause of action and that the demurrer Avas improperly overruled.

The order appealed from is erroneous upon another ground. It required the payment of $10 costs absolutely instead of as terms of ansAvering over. Costs are not recoverable on an order overruling or sustaining a demurrer, other than under the general provisions for taxing costs in favor of the prevailing party at the final determination of the litigation, except as a condition of answering or serving an amended pleading. Curtis v. Moore, 15 Wis. 134; Schoenleber v. Burkhardt, 94 Wis. 575; Bishop v. Aldrich, 48 Wis. 619.

The result of this case does not leave a person charged with unreasonable solicitor’s fees or other costs on the foreclosure of a mortgage by advertisement, without remedy. A person so circumstanced is fully protected by sec. 3543, R. S. 1818, which provides that the costs and expenses of foreclosing any mortgage by advertisement shall be taxed by some officer authorized to tax costs in a court of record on request of any party liable to pay the same, and on notice to the other party, on his paying the expenses of such taxation. Solicitor’s fees are not a part of the mortgage debt, but are costs of the foreclosure proceedings, stipulated for to reimburse the mortgagee for expenses of attorneys, not recoverable in the absence of such stipulation. Wylie v. Karner, 54 Wis. 591; Reed v. Catlin, 49 Wis. 686; Spengler v. Hahn, 95 Wis. 472. Being inserted in the mortgage to meet a particular contingency, that of expenses occurring for professional services, they are subject to the control of the court, having regard to whether such services are rendered and the nature of them. Reed v. Catlin, supra; Patterson v. Donner, 48 Cal. 369. Such is the settled law and a part of every mortgage contract in regard to solicitor’s fees in addition to taxable costs. The duty of taxing the costs and expenses allowed being lodged, by sec. 3543, R. S. 1878, in officers of courts of record authorized to tax costs, that duty includes determining the proper amount under all the circumstances that should be allowed as solicitor’s fees, and a determination so reached is subject to review under the rules of court, the same as in any other case where similar duties of taxing costs shall have been performed. The remedy thus afforded was intended by the legislature to be exclusive, and is so under the familiar principle that statutory rights are to be exclusively enforced by statutory remedies where such remedies are provided.

By the Court.— The order of the circuit court is reversed, and the cause remanded for further proceedings according to law.