Smith v. Coolbaugh

| Wis. | Jan 15, 1867

Cole, J.

In this case the appellant filed a general exception to the facts found by the court, and to the conclusion of law therefrom. There were three separate and distinct findings upon questions of fact, and a general conclusion of law from the facts found. Under the practice of this court, the exception is too general to authorize us to review the evidence. The cases of Taft v. Kessel, 16 Wis., 273" court="Wis." date_filed="1862-06-15" href="https://app.midpage.ai/document/taft-v-kessel-6598851?utm_source=webapp" opinion_id="6598851">16 Wis., 273, and Gilman v. Thiess, 18 id., 528, are clear and decisive upon the question of practice. And the adjudications are equally clear and emphatic in New York, that upon a general exception of this kind the court will not go into a review of questions of fact, but that the party excepting must take his objection in a more specific manner, so as to point out the particular error of which he complains. Newell v. Doty, 33 N.Y., 83" court="NY" date_filed="1865-06-05" href="https://app.midpage.ai/document/newell-v--doty-3583957?utm_source=webapp" opinion_id="3583957">33 N. Y., 83.

The action is brought by a junior mortgagee of personal property, to redeem from the assignee of a prior mortgage. And a question is made, whether a right of redemption exists after breach of the condition. The law is well settled that such right of redemption exists, even after default, and before it has been foreclosed by sale. Mr. Justice Story, in Ms work on Equity Jurisprudence, vol. 2, § 1031, says: “ In mortgages of personal property, although the prescribed condition has not been fulfilled, there exists, as in mortgages of land, an equity of redemption, which may be asserted by the mortgagor if he brings his bill to redeem within a reasonable time.” This doctrine has been expressly asserted or impliedly admitted in seyeral cases which have come before this court, and it is abundantly sustained by authority. Flanders v. Thomas, 12 Wis., 410" court="Wis." date_filed="1860-06-15" href="https://app.midpage.ai/document/flanders-v-thomas-6598223?utm_source=webapp" opinion_id="6598223">12 Wis., 410. There is no reason why the junior mortgagee should not haye the same right. His equity is as strong as that of the mortgagor, and he ought to be entitled to the same right of redemption from a prior mortgage. In this case, however, the second mortgage was not given until after the first became due. But the mortgagor was in possession of the property, and he undoubtedly had an interest therein which he could mortgage. See Saxton v. Williams, 15 Wis., 292" court="Wis." date_filed="1862-05-15" href="https://app.midpage.ai/document/saxton-v-williams-6598694?utm_source=webapp" opinion_id="6598694">15 Wis., 292. It is claimed that he had no mortgageable interest, because the title to the property, on default, had become absolute at law in the first mortgagee. But still, as just observed, he was in possession, and had the right to redeem until this right was foreclosed by a sale, or perhaps by lapse of time. We have no doubt but he had such an interest as was the subject of sale .or mortgage.

It is further insisted that the court should have granted judgment on the answer, because it was not replied to. The matters contained in the answer are not set up as counterclaims, but are relied on as payments on the second mortgage.In this view, it was not necessary to traverse them. It was clearly incumbent upon the appellant to show that the goods and work mentioned in the answer were sold to and done for the respondent, to be applied on his mortgage. This would sustain the answer, and show- that the mortgage had been discharged. But there was no error in denying the application for judgment on the answer.

This disposes of all the material questions in the case.

By the Court. — The judgment of the circuit court is affirmed.