Stone v. Lannon
6 Wis. 497
Wis.
1858
Check Treatment

JBy the Gouri,

Whiton, O. J.

We are of opinion that the instructions of the judge to the jury were correct. We suppose there can be no doubt that the verbal agreement which Lannon made to execute the discharge of the mortgage would not bind him.

But even if we should regard the agreement as binding upon him, and so capable of being the foundation of an action for damages, we should still be of opinion that this action could not be sustained. The action is brought upon a statute, to recover, what we must consider as a penalty; the statute, therefore, must receive a strict construction.

It gives the penalty only in cases where the mortgagee or his personal representatives refuse to execute the discharge, “after a full performance of the condition of the,mortgage.” Now it cannot be said that the condition of this mortgage was fully performed, because the testimony shows that a further sum was to be paid by Dunn, the mortgagor.

Lannon agreed to execute the discharge, but there does not appear to have been any consideration for this promise ; and as we have above stated, we do not consider it of force even as an agreement. But even if good as an agreement, it does not show that the condition of the mortgage had been fully performed as the statute requires.

The plaintiff in error contends, that as Lannon agreed to execute the discharge, he is now estopped to say that the mortgage *502debt was not fully paid. We do not see how this position of the plaintiff in error can be sustained. If tiie plaintiff had been induced to purchase the land by the agreement of Lannon to discharge the mortgage, and Lannon had afterwards endeavored to enforce the mortgage by a foreclosure, perhaps the doctrine of estoppel would apply. But we see no reason for applying it in a case like the present. We think it unnecessary to notice the circumstance relied upon by the defendant in error, that a release of the mortgage was in fact executed by Lannon, and offered to Dunn and Cleary and refused by them.

The judgment of the court below is affirmed.