19 Wis. 311 | Wis. | 1865
By the Court,
It is of the plaintiff and his deceased co-executor as executors, and not as trustees under the will, that we must speak. It is not shown that the estate was settled, and the securities passed to them as trustees; nor does it appear but that sufficient funds out of the securities are still in the hands of the plaintiff as surviving executor to answer the exigencies of the trust.
Viewing the case then as one involving the powers and duties of the executors as such, we hold : 1. That the satisfaction of the mortgage by the deceased executor, Stone, is prima facie valid — that it may be voidable, but is not void. It was competent for Stone to release the mortgage without the assent or signature of the plaintiff. Jackson v. Shaffer, 11 Johns., 513; Douglass v. Satterlee, id., 16; Wheeler v. Wheeler, 9 Cow., 34; Murray v. Blatchford, 1 Wend., 583; Bogert v. Hertell, 4 Hill, 492 ; 2 Williams on Executors, 810.
2. That there can be no foreclosure of the mortgage while the satisfaction stands. Being prima facie valid, it bars the remedy by foreclosure. It must first be set aside, either by the voluntary agreement of the parties or the judgment of a competent court. Before this is done, the plaintiff cannot come in to assert the validity of the mortgage. The setting aside of the satisfaction constitutes of itself a distinct ground of action. The plaintiff might sue upon it separately, or he might join it in the action to foreclose. But he has done neither. He sues to for^jlose, leaving the satisfaction in full force.
3. That upüi the facts shown in evidence, the deceased executor, Stone, was guilty of a devastavit in satisfying the mortgage, and consequently that the satisfaction is liable, upon a proper application, to be set aside for that reason. The law upon this point is correctly stated in 2 Williams on Executors, 799, 800. If a man concerts with an executor, by apply
Under these circumstances we think the court below ought not to have given final judgment in favor of the defendant, the mortgagor ; but should either have dismissed the action without prejudice to the right of the plaintiff to bring a new suit, or, upon proper application and on such terms as might be just, have directed an amendment of the complaint so as to include a statement of the cause of action for relief against the satisfaction, and to have it vacated. The judgment will