32 Wis. 319 | Wis. | 1873
I. At the time Meloy took the conveyance of the equity of redemption in the mortgaged premises, it is very clear that in equity there was no merger of his prior incum-brances with the title thus conveyed to him. In equity such incumbrances doubtless remained in full force and paramount to the lien of the plaintiff’s mortgage, notwithstanding such conveyance. Wé think that the learned counsel for the appellants has fairly demonstrated, on principle and by authority, that this proposition is correct.
But the sale and conveyance of the mortgaged premises by Meloy to Blain for a price sufficient to pay off all of the in-cumbrances in full, including the mortgage of the plaintiff, together with the sum paid for the equity of redemption, presents the case in a very different aspect. The fact that Meloy received no cash on such sale, but took back a mortgage for the whole price, is immaterial. There is no claim that the security is not ample; the interest reserved is ten per cent.,payable annually, and it may be that Meloy preferred the mortgage to a cash payment. However that may be, we think with the circuit judge that the giving of the mortgage for the price is equivalent to a cash payment, and that the case is to be determined precisely as though Meloy had received $2,025 in cash for the premises.
Had Meloy foreclosed the Kennedy and Barlow mortgages instead of buying the title of Neugent and wife, the mortgagors, and had the premises been sold on such foreclosure for the price paid by Blain therefor, as a matter of course the plaintiff would have been entitled to have his mortgage paid out of the proceeds of such foreclosure sale. What difference can it make that, instead of foreclosing, Meloy purchased the equity of redemption, and then sold the premises at private
II, The bill of exceptions purports to contain all of the testimony given on the trial, and the record before us-does not furnish the slightest affirmative evidence that the notice of the pendency of the action required by statute was filed in the office of the register of deeds. R. S., ch. 124, sec. 7. Neither does the record show that there was no proof before the court
It follows from the views above expressed, that the judgment of the circuit court should be affirmed.
By the Court.— Judgment affirmed.