98 Wis. 329 | Wis. | 1898
Two reasons are urged in support of the ■demurrer: (1) That the complaint fails to allege that the respondents knew that a clause whereby they assumed and agreed to pay the mortgage was contained in the conveyance of the lands to them, and that they assented to it; and (2) that the respondents are not liable on the promise alleged, as principal debtors, but as sureties, only, for such deficiency as may remain after the application of the mortgaged premises to the payment of the mortgage debt.
1.' It is not the office of a complaint to allege merely evidential facts. Issuable facts only are to be alleged. The issuable fact which constitutes the appellant’s cause of action is that the respondents assumed one half of the mortgage debt, as a part of the consideration to be paid by them for the mortgaged premises. It would be competent under such an allegation to show, in proof of the fact, either that the respondents had accepted a deed of the premises which contained a provision to that effect, or that they had promised orally to pay it. Bishop v. Douglass, 25 Wis. 696; Jones, Mortgages, § 752; Morgan v. South Milwaukee Lake View Co. 97 Wis. 275. It is enough to prove the substance of the issue. It does no injury, if, in some detail merely, there is variance. McNally v. McAndrew, ante, p. 62. The fact to be alleged and proved is the assumption of the mortgage ■debt. Whether the respondents knew of, and assented to, the provision in the deed, is a mere detail of the proof by which it shall be attempted to show that they assumed the mortgage debt. The allegation is sufficient as matter of pleading.
2. Whether the respondents are liable as principal debtors, •or only as sureties, is not doubtful on well-established prin
Palmeter v. Carey, 63 Wis. 426, is cited as bolding that the liability of the respondents is not primary, but as sureties, only, for a possible deficiency. And indeed some things are said in that opinion which seem to give countenance to-that contention. But really no such question was involved or decided in that case. The question there related to the construction of sec. 3156, R. S. 1818. It was a question of practice, merely. It was whether, under that section, judgment for a deficiency in a foreclosure action could properly go against a purchaser of the mortgaged premises, who had assumed the payment of the mortgage debt as a part of the consideration of his purchase, or whether recovery against him must be by a separate action at law. It was not claimed, nor in issue, in that action, that the grantee of the mortgaged premises, who had assumed the mortgage debt, was liable otherwise than for a deficiency. That was all that the mortgagee claimed, and the grantee did not deny liability to that extent. He simply contested his liability to a judgment for a deficiency in the foreclosure action. Ilis contention was that he could be made liable only in an action at law -after the deficiency had been ascertained. The court deemed that the statute had been enacted to avoid the necessity of such circuity of action. The case did not call for a consideration of the question involved here. The court was not called upon to give careful or final consideration to a proposition which was neither affirmed by the respondent nor denied by the appellant. The decision is not in conflict with what is decided here. It is not authority beyond the point in issue and decided.
By the Court.— The judgment of the superior court of Douglas county is reversed, and the cause is remanded for further proceedings according to law.