Watson v. Wilcox

39 Wis. 643 | Wis. | 1876

RtaN, C. J.

This appeal involves two distinct questions:

I. The sufficiency of the Us pendens in the action brought by the respondent against Bates and others.

That was a,suit in equity, seeking to have certain conveyances held for mortgages only, and certain other conveyances held to be void. Notice of the pendency of the action was filed, stating the nature of the suit, enumerating the several conveyances involved, and describing the land conveyed by each conveyance. We cannot doubt,- and we do not understand it to be seriously questioned, that if the notice had there stopped, it. would have been a sufficient compliance with the statute. Ch. 134, sec. 7, R. S. For it gave, in very intelligible form, the names of the parties, the object of the action, and a description of the property affected hy it. But the notice proceeds, hy way of supererogation, to add a conclusion undertaking to describe, what had already appeared, the property to he affected hy the action, and giving a wrong description. By what is obviously a clerical error, this description twice substitutes the word north for south, and so describes other land not included in the conveyances in question. And the only question on the sufficiency of the Us pendens is, whether this needless and false conclusion vitiates the whole notice.

"We cannot think that it does. The statute charges every subsequent purchaser with constructive notice of the whole paper filed, which gives notice of the property affected by its true description. The constructive notice of the statute is equivalent to actual notice by reading the Us pendens filed. Any person of reasonable intelligence, reading it, would perceive the error. And the appellant, as others interested in the title, appears to be chargeable with knowledge that the true description of the property is in the statement of the conveyances, because they are in his chain of title. Pringle v. Dunn, 37 Wis., 449, and cases there cited. "Were that otherwise, the notice is sufficient as to both descriptions, the true and the false. The false description is mere surplusage; and utile per inutile non vitiatmr. See Thompson v. Jones, 4 Wis., 106; Jarvis v. McBride, 18 id., 316; Dupont v. Davis, 30 id., 170. All that the statute requires is in the notice, independently of this superfluity, which serves only to add notice of a falshood to notice of the truth.

This case is quite distinguishable from Spraggon v. McGreer, 14 Wis., 439, and Miller v. Sherry, 2 Wall., 237, cited for the appellant. In the first of these cases, the notice of Us pendens contained no correct description of the premises in controversy; and in the second, the creditor’s bill, which was relied on for notice, described no specific realty whatever. It is also distinguishable from Thomson v. Wilcox, 7 Lans., 376, in which there was a single misdescription by metes and bounds coupled with the correct street number. There the one description was inconsistent with itself, the principal description being bad and the incident good. This is essentially different from two descriptions of different parcels, both certain in themselves. In the case in Lansing there was a failure of correct description of any land; in this, there is a correct and independent description of the land in controversy, and also a correct and independent description of other land not in controversy, inserted by mistake: a mere sur-plusage.

Of course, the merits of the case in which the lis pendens was filed, are not before us here. And, for the reasons stated, we hold the Us pendens sufficient to charge the appellant with notice.

II. The claim of the appellant to be subrogated to Sarah Ann Ilodson, mortgagee of the premises in controversy under George and Harriet Harvey; that is, to have his mortgage subrogated to hers.

Before the appellant took his own mortgage from George and Harriet Harvey, he was a stranger to the title, and had no connection with the mortgage debt due to Sarah Ann Ilodson. His action in the premises was voluntary. He first proposed to purchase the Ilodson mortgage, but subsequently abandoned that intention and advanced the amount due upon it for the Harveys, for the express purpose of satisfying and canceling the Hodson mortgage. This was done; the appellant thereupon taking a new mortgage for his own security. It is difficult to see how the doctrine of sub-rogation can aid him.

The rule is thus stated by 'Walwoeth, C.: ¡ “ It is only in cases where the person advancing money to pay the debt of a ■third party, stands in the situation of a surety, or is compelled to pay it to protect his own rights, that a court of equity substitutes him in the place of the creditor, as a matter of course, without any agreement to that effect. In other cases the demand of a creditor which is paid with the money of a third person, and without any agreement that the security shall be assigned or kept on foot for the benefit of such third person, is absolutely extinguished.” Sandford v. McLean, 3 Paige, 117.

The same rule is sanctioned by this court in Downer v. Miller, 15 Wis., 612. Mr. Justice PaiNe there remarks: “ If Miller had simply loaned his credit to Steever to enable him to raise the money with which to pay the Lyness judgment, Miller being in no way bound to pay it, either as security or otherwise, this alone would not have entitled him to be subrogated to the rights of Lyness. We know of no case that has ever carried the doctrine of subrogation so far as to hold that a mere loan of money, for the purpose of enabling the borrower to pay a debt, entitles the lender to be subro-gated to the rights of the creditor whose debt was thus paid.” And Pelton v. Knapp, 21 Wis., 63, appears to proceed upon the same principle. See also Marvin v. Vedder, 5 Cow., 671; Richmond v. Marston, 15 Ind., 134; and the English and American notes to Aldrich v. Cooper, Hare & Wallace’s edition of White & Tudor’s Leading Cases, passim. And we see nothing in conflict with the rule in the cases in this court, Morgan v. Hammett, 23 Wis., 30; Raymond v. Holborn, id., 57; Blodgett v. Hitt, 29 id., 169, and Winslow v. Crowell, 35 id., 639, cited for the appellant.

Banta v. Garmo, 1 Sandf. Ch., 383, was a case like this, where money was advanced by the junior mortgagee to pay the prior mortgage, which was thereupon satisfied; although in that case the satisfaction piece was not recorded. The Vice Chancellor followed Sandford v. McLean; remarking of the junior .mortgagee’s claim of subrogation, that “ if the question were open, I should at once say that the evils which would flow from the adoption of such a principle, would far overbalance the hardship of particular cases which occur under the rule of law as now settled.”

It is therefore impossible to uphold the appellant’s claim to he subrogated to the rights of Sarah Ann Hodson, or to revive her mortgage purposely extinguished by his own voluntary act.

■ The demurrer to the complaint was properly sustained, and the judgment of the court below must be affirmed.

By the Court.— Judgment affirmed.