20 Wis. 503 | Wis. | 1866
When this cause was reached in its order, it was argued by the counsel for the appellants, the counsel for the opposite party not being present. After the cause had thus been submitted, the counsel for the respondent made and filed a motion to dismiss the appeal, for the reason that no copy of the undertaking was served with the notice of appeal, as required by the statute. If this objection had been seasonably taken, the motion must have prevailed and the appeal been dismissed. But after a cause has been submitted, we think it too late to move to dismiss the appeal upon any such ground.
This brings as to a consideration of the order appealed from. The circuit court ordered and directed that the referee appointed to make the sale cause the homestead of the defendant, not exceeding one fourth of an acre, to be set off to him in the same manner as provided by law in case of sale on execution, and that the residue of the mortgaged premises should be first sold to satisfy the judgment of foreclosure. Of course the obvious effect of this order is to give the defendant the benefit of the homestead exemption at the expense of the judgment creditor; since the mortgage debt was charged exclusively in the first instance upon that portion of the mortgaged property subject to the lien of the judgment. And the question is, has the debtor a right to have that portion of the mortgaged property subject to the lien of the judgment first exhausted to satisfy the mortgage, in order to preserve to him the homestead ? Or is this right overborne by the superior equity of the judgment creditor to have the mortgage debt first charged upon the the property not subject to his lien?
It is a familiar rule, that where a creditor has a claim upon two funds, on one of which another person has also a claim, and such other person will be prejudiced by allowing such creditor to satisfy his debt out of the fund subject to both claims, a court of equity will compel the creditor to take satisfaction out of the fund to which he alone has a claim, in the first instance. He must exhaust that fund before resorting to the other. The same principle would seem to apply here, unless the right of the debtor to have the homestead secured to him is superior and stronger than the equities of the judgment creditor.
In Jones v. Dow, 18 Wis., 241, this precise point was presented, and the Chief Justice said: “ Until the legislature shall
By the Court. — The order of the circuit court is reversed, and the cause remanded for further proceedings.