44 Wis. 185 | Wis. | 1878
I. The first question to be considered is as to the legal effect of the purchase by the Whortons of one-half of the Scott mortgage, and at the same time the purchase of the equity of redemption of the mortgaged property, it being conceded that these purchases were made out of the funds of the partnership, and for the benefit of the firm. It is claimed by the learned counsel for Webster, that the purchase of one-half of the Scott mortgage in the name of W. G. Whorton, and of the equity of redemption in the name of John K. Whorton, under the circumstances, operated, by way of merger, to satisfy and extinguish one-half of the Scott mortgage debt transferred to W. G. Whorton, so as to leave the mortgaged prem
But it was further insisted, that the plain object which the Whortons had in view by the purchase of an -interest in the mortgage and the purchase of the equity of redemption, was to injure Webster/ or, in the language of the learned counsel, it was “ intended to wipe out his mortgage, or render his security as valueless as possible.” But, as already observed, we fail to see how his rights were or could have been prejudiced by .what was done. The property was charged with the pay
II. It appears that there were lands covered by the Soott mortgage which were not included in the Webster mortgage. The court ordered that these should be first sold to satisfy the amount due on the first mortgage. It also appeared from the testimony of the plaintiff Soott, that he held a quantity of lands in Chippewa county, with some drafts and lumber, as collateral security for the payment of the mortgage and an account against the mortgagors. Under the rule of marshaling securities, it is claimed that the court should have further decreed that the Chippewa lands and other property be first appropriated to pay the mortgage debt. It is the aim of a court of equity, as regards marshaling assets, to do equity; and equality is generally equity. Says Chief Justice Marshall: “ The principle on which the court proceeds is, that a creditor having his choice of two funds ought to exercise his right of election in such a manner as not to injure other creditors who can resort to only one of these funds.” Alston v. Munford, 1 Brock., 279. This principle has often been applied in this court, as between creditors. Goss v. Lester, 1 Wis., 43; Worth v. Hill, 14 id., 559, and cases cited in head note in Y. & B.’s ed. The difficulty, however, in enforcing that principle here is, that there is no foundation laid for any such relief in the answer of Webster. Had he amended his answer, on the trial even, asking, by way of counterclaim or cross bill, that an ac
III. It is further said that the Whortons were in possession, and should have accounted for the use and occupation of the premises. It will be seen that they became the owners of one-half of the Soott mortgage, and of the equity of redemption, only seven days before this suit was commenced. As owners of the equity of redemption, they were entitled to the possession. We do not think any accounting was necessary or should have been had.
IY. A vai’iety of objections are taken to the form of the judgment. Whether any of these objections would work a
By the Court. — Judgment affirmed.
A motion for a rehearing was denied.