71 Wis. 476 | Wis. | 1888
Upon the facts stated, and numerous decisions of this court, we must hold that the plaintiff was, in legal effect, the owner of the undivided one-fourth of all the lands in question, October 14, 1871, subject to the payment of the $10,000 mentioned; and that when D. W. Bradley and Lovejoy advanced the amount of money named and received the conveyances from Jenkins, they took and received the title to such undivided one-fourth as security for the money so advanced, and such interest, taxes, etc.; and hence, under the agreement mentioned, the relation between the plaintiff and them was, in legal effect, that of mortgagor and mortgagees. Starks v. Redfield, 52 Wis. 352, 353; Hoile v. Bailey, 58 Wis. 448; Schriber v. Le Clair, 66 Wis. 579; and cases cited in these references. By such conveyances X). W. Bradley got the legal title to twelve twentieths of the lands, and Lovejoy three twentieths, while the other five twentieths remained in Jenkins. July 13, 1872, D. W. Bradley sold and conveyed to the- Kelleys four twentieths of the lands, and September 15, 1875, he made a voluntary conveyance of his other eight twentieths to his son Edward.' November 10, 1882, Jenkins, Edward Bradley, the Kelleys, and Lovejoy conveyed the whole of the lands, except fourteen forties apparently worthless, to the defendant company. These several conveyances must each in equity be regarded asan assignment of a fractional part, or the whole, of any balance that may have remained unpaid on the mortgage at the times 'they were respectively made. Whether or not there were any such unpaid balances can only be determined by an accounting and trial upon the merits. This action, therefore, is essentially a bill for an accounting by these defendants, and for a redemption from the mortgage, and a reconveyance from the defendant company.
The same is true respecting the personal representatives of the D. W. Bradley estate, and also both of the Kelleys. Certainly it is unnecessary for the assignor of the mortgage to be made a party in an action to redeem from the mortgage. That is practically what is sought to be required here. Neither the Kelleys, nor any of the other absent parties mentioned, have submitted themselves to the jurisdiction of the court and sought to be made parties. The burden is upon the plaintiff to show that the mortgage has been paid, and hence that he is entitled to a reconveyance. Such payment is claimed by reason of his share of the net proceeds of timber removed and sales of timber and land.
By the Court.— The order of the circuit courtis affirmed.