22 Wis. 695 | Wis. | 1868
Lead Opinion
Assuming that tbe grantees of Noonan became assignees of tbe mortgage in proportion to tbe value of tbe land attempted to be conveyed to each, and that tbe actions by Earwell, Boby and others, against Noonan, Boys and others, were properly commenced as well in behalf of all other persons interested and not named as of tbe plaintiffs named, still I think that tbe complaint states no cause of action. I'think tbe plaintiff altogether mistakes tbe true relation of tbe persons not named to tbe actions which were thus commenced in their behalf. He seems to suppose that they were real parties to tbe action, and bound to bear their proportion of tbe expenses of tbe litigation, whether they assented to tbe proceedings and came in under tbe judgment, or not. In other words, be seems to think it competent for tbe plaintiffs named, who commenced and carried on tbe litigation without tbe knowledge or consent of
Besides, the condition of the promise which was made, has never been fulfilled. That condition was, “ that in case he should be protected in his interests correspondingly with the other plaintiffs and parties interested, by the said action and measures begun and taken, he would pay his proportionate share of the outlays and expenses necessary thereto.” Whether the defendant should be protected in his interests or not, depended on whether he should come in and become a party to the action, which was a matter entirely optional with himself. Having refused to come in, he has received no protection, but is debarred from all rights under the judgment; and the condition upon which he was to pay has failed.
I think, therefore, that the demurrer to the complaint should have been sustained, and that the order of the court below must be reversed.
By the Court. — Order reversed.
The plaintiff moved for a rehearing.
Rehearing
On motion for a rehearing it is contended, First, that it already sufficiently appears by the complaint that the defendant did come in and accept the benefit of the foreclosure judgment before this action was commenced. We do not think so. What is meant by comirig in and accepting the benefit of the judgment, or claiming under it, in such cases ? Obviously, that the person previously unknown or not named shall- appear before the court in which judgment is rendered, and shall connect themselves with the action as actual parties of record. This is done by
Secondly, it is contended, though the facts pleaded are not sufficient to charge the defendant, as a party to the foreclo.-sure action, with a proportion of the-costs and expenses, yet that enough is stated to authorize a recovery, as in ejectment, of that part of the mortgaged premises claimed and occupied by the defendant; or if not that, a redemption from the lien of the mortgage to the extent of the defendant’s interest. As purchaser at the foreclosure sale, the plaintiff claims to have acquired title to the whole mortgaged premises; and as the grantee of Rogers and James, and (through them, by the intermediate conveyances) of Field and Ford, he likewise claims the equity of redemption in so much and such parts of the mortgaged premises as were not affected by the foreclosure proceedings. Upon these propositions it is unnecessary for. us to express any opinion, since it so clearly appears from the entire language of the complaint, that the sole object of this action is to recover from the defendant his alleged share of the costs and expenses of the foreclosure proceedings, and of the other steps taken to perfect the title. It cannot be regarded either as an action of ejectment or as a suit in the nature of a bill to redeem. Whether, as is suggested, the complaint can be so amended as to transform it into one or the other
By the Court. — The motion for a rehearing is denied.