Wisconsin Mortgage & Securities Co. v. Kriesel

191 Wis. 602 | Wis. | 1927

Eschweiler, J.

Although the owners of the homestead did not appear, answer, or in any wise assert that exemption, the trial court very properly, and under Circuit Court Rule XXV so providing, inquired as to the situation and made appropriate findings as to the existence of the homestead, and none of those here asserting liens against the-property can be heard to object to such findings. The findings and judgment describe the homestead as the N. W. J4 of the S. E. of section 5, although in the testimony it is stated as being the S. W. of the S. E. yi, and if there be error in the description it may of course be corrected on return to the court below. Some suggestion was made below and is here that the homestead had been abandoned at the time of trial, but no finding to that effect appears to have been requested by any party, none such made, and the evidence and record'is such that any possible abandonment or loss of homestead exemption cannot now be considered.

The appellant Meyer claims that his judgment of February, 1922, should be the superior lien, — it antedating plaintiff’s mortgage, which was dated and recorded in July, 1922.

For such a judgment to become a lien upon the debtor’s real property, other than the homestead, it must, under sec. 270.79, Stats., first be docketed in the county where such real-property is found. To be so docketed it must, under sec. 270.74, be entered by the clerk in a book or books to be kept by him — that is, in a judgment docket which may be arranged alphabetically (which was not the case here), or, if the judgment docket is not so arranged, then also in an alphabetical index to accompany such docket. In either event the name of the judgment debtor (who may be either plaint--iff or defendant in an action) must be entered at length, etc. That the particular term used by the clerk in keeping or referring to any of such records was, in this instance, perhaps, not technically accurate, is entirely immaterial.

The judgment here was duly entered in a proper record at the time it was rendered in February, 1922; it was, however, not entered in the usual and proper index above mentioned until September. For such failure to so index and to comply with the statute it did not become a lien upon the debtor’s real estate as against those in the meantime taking security thereon without actual notice. The court found, and there is ample support for it, that the plaintiff had no actual knowledge of the February judgment until after it had paid over the $5,000 and long after its mortgage was recorded.

The required search on plaintiff’s behalf for judgment liens needed to go no further than was done in this case, and, such index having been examined and being barren of any reference to this judgment, reliance might properly be placed by plaintiff upon such search in obtaining satisfactions instead of assignments of the several prior outstanding mortgages and in advancing the rest of the loan. This proposition was so settled in Davis v. Steeps, 87 Wis. 472, 58 N. W. 769, 23 L. R. A. 818; McKenna v. Van Blarcom, 109 Wis. 271, 85 N. W. 322.

We think this disposition of the case takes away any question of the power or duty of the court, as between the plaintiff mortgagee and Meyer, the defendant judgment creditor, to permit the plaintiff to be subrogated to the rights of the prior mortgagees whose liens were satisfied of record when plaintiff paid out the $3,918.36 in August and before the index entry of the judgment was made. If, as we now hold, plaintiff’s mortgage by prior recording became a superior lien on the debtor’s real estate ahead of the judgment, belated in recording, it became such superior lien for all purposes and to its full extent and needed no support by being subrogated to the prior liens for payment of which a portion of the $5,000 advanced was used. That the trial court may have given the appellant more than he was entitled to receive is, of course, not a matter of which he may complain.

If such subrogation were necessary, however, it could, under the’ facts here shown, properly have been granted. Plaintiff was hot a mere volunteer; its money was loaned for the express purpose of taking care of the prior liens; it acted in good faith and with due diligence. Levy v. Martin, 48 Wis. 198, 4 N. W. 35; Iowa County Bank v. Pitts, 192 Wis. 83, 211 N. W. 134.

The cross-complaint of Meyer, the judgment creditor, against Hoenig, the clerk of the circuit court, upon the record presented on the trial, was properly dismissed. We consider it unnecessary to here determine any of the questions presented and argued as 'to possible liability of a clerk of a circuit court for damages consequent ripon neglect' or failure to make proper and complete record entries of such judgment, whether such liability be asserted under the terrps of sec. 270.84, Stats., providing for treble damages sustained by reason of fault or neglect of'the clerk in failing to docket such a judgment at the proper time; under sub. (7), sec. 59.39, making it the duty of such clerk to keep proper records; or under the substantive law as to .liability for neglect of duty. It is rendered unnecessary because of failure by Meyer to show actual loss or damage to him resultant •from such failure of the clerk. Until such a foundation is laid there could be no legal liability established under any one or more of the three above suggested possible grounds. Johnson v. Brice, 102 Wis. 575, 580, 78 N. W. 1086; Hahn v. Petters & Co. 189 Wis. 145, 207 N. W. 291; Rising v. Dickinson, 18 N. Dak. 478, 121 N. W. 616, 23 L. R. A. n. s. 127 and note.

It being incumbent upon the judgment creditor to show not merely breach oí official duty by the clerk of the court but actual financial loss by such default, we have the following situation: The homestead up to the dear $5,000 value would be exempt from this judgment lien; it was the duty of the trial court, and he so acted, to provide that this homestead exemption should be favored and non-exempt property to be first exhausted. Rozek v. Redzinski, 87 Wis. 525, 531, 58 N. W. 262. See, also, Berger v. Berger, 104 Wis. 282, 285, 80 N. W. 585. To that end he directed the nonexempt property should be first sold and out of the proceeds there should be paid the amount of the outstanding prior mortgages in existence at the time of the entry of the judgment. This amount of money was advanced for the purpose and used in taking up the concededly valid obligations then existing against the entire property, and which, if they had been foreclosed, would also have required the exhaustion of the non-exempt property for their satisfaction before recourse was had to the homestead. Such directions were eminently proper to be made by a court of equity determining the rights of several claimants to a debtor’s property or fund. The court further provided that any surplus after such application of the proceeds from the sale of the non-exempt property should be applied on the judgment lien, and this is all the judgment creditor could expect to receive. How much such surplus might be could not be told at the trial other than by the testimony as to estimated values, and from these it would appear that the proceeds of the non-exempt property would be exhausted in their application on prior liens to those of the judgment creditor. That the homestead was subjected by voluntary acts -of the defendant Kriesel and his wife to- incumbrances did-not lessen their right as against other creditors to assert the homestead exemption up to a clear $5,000 and to such a sum from the proceeds of any sale if held for the purpose of obtaining another homestead. Sec. 272.20 (sec. 2983). The cross-complaint of Meyer was therefore properly dismissed so far as the showing at' the trial is concerned. It is not intended hereby to foreclose him from asserting rights at the foot of the judgment herein or by other proceedings to any of the funds resulting from the sale of the real property in this action or as against defendant Hoenig, if any such rights he may have.

By the Court. — Judgment’ affirmed.