39 Wis. 512 | Wis. | 1876
Tbe decision in Hanson v. Edgar, 34 Wis., 653, controls tbis case, unless tbe fact tbat tbe Lightbody mortgage was executed before tbe passage of cb. 133, Laws of 1810, calls for tbe application of a different rule. Rut we do not think tbat fact can or should have any sucb effect, for tbis reason: Tbe rule tbat where one has a lien upon two estates, and another a subsequent lien upon only one of them, tbe former will be compelled first to exhaust tbe subject of his exclusive lien before be resdrts to tbe doubly-charged estate, was one which a court of equity enforced upon equitable principles. It was not a matter of strict right given by tbe contract, nor was it in any sense a vested right, but was an equitable rule, enforced in cases where no injustice was done by its application and other equities did not intervene. Kendall, Ex parte, 17 Ves., 514; Dorr v. Shaw, 4 Johns. Ch., 17; 1 Story’s Eq. Jur., § 642; Newsom v. McLendon, 6 Ga., 392; Adams’ Eq., p. 507 et seq. In other words, the right rested in the sound judicial discretion of the chancellor, and was not an absolute rule of law. The law of 1870 has certainly changed this equitable doctrine in respect to homesteads, so far as mortgages are concerned executed after its passage. And in deference to the policy of that statute, it is the duty of a court of equity to favor the homestead right as against the equities .of creditors arising under the former rule. In the present case the circuit court ordered the homestead to be first sold to satisfy the plaintiff’s mortgage, in order to benefit Lightbody, who has taken an imperfect security. This we think was error, and must work a reversal of the judgment.
The judgment recites that the direction to sell the homestead first was given by the court on the motion of Lightbody; and the plaintiff’s counsel states that • this order was made against the wishes of his client. The counsel therefore claims that the costs on the reversal of the judgment should be adjudged against Lightbody, and not against the respondent. Under the statute we can exercise no such discretion in respect
By the, Court. — The judgment of the circuit court is reversed, and the cause is remanded for the entry of' the proper judgment of foreclosure.