Bull v. Sykes , 7 Wis. 449 ( 1859 )

By the Court,

Cole, J.

The order of the circuit court sustaining the demurrer to the complaint in this cause, must be reversed. It appears, from the complaint, that at the time of the execution of the mortgage, which is sought to be foreclosed, Sykes, the mortgagor, was in possession of the mortgaged premises under the contract which he had made with Cra-vath for the purchase thereof, had paid part of the purchase money and had made valuable improvements upon them. He then mortgaged his interest in the land to H. C. Bull & Co., to secure the payment to them of two several promissory notes. Now there seems to be a question made as to whether Sykes had such an interest in the land that he could mortgage it Can there be a doubt about it ?

“ As to the kinds of property which may be mortgaged, it may be stated that, in equity, whatever property, personal or real, is capable of an absolute sale may be the subject of a mortgage.” 2 Story Eq. Jur., § 1021. “ Therefore, rights in remainder and reversion, possibilities coupled with an interest, rents, franchises and choses in action, are capable of being mortgaged.” The bargainee under a contract for sale and conveyance of real estate has such an interest in the land that it is a matter, almost of daily occurrence, for courts to entertain suits to enforce the specific performance of such agreements. The relation between the parties under such contracts is said by this court, in the case of Button vs. Schro-der, 5 Wis., 598, to be analagous to that of an equitable mortgagor and mortgagee; the bargainee having the right to be relieved against a forfeiture for non-compliance with the contract when he offers to perform within a reasonable time, and the bargainor having the right to foreclose the equity of the delinquent bargainee. That a mortgage given by a person holding under a contract of this nature, has been held valid ;• see Purmont vs. McCrea, et al., 5 Paige, 620. The respondent took an assignment of Syke’s contract with full knowledge of the existence of the mortgage given to H. C. Bull & Co., and therefore he can claim no greater equities than Sykes could himself. It is even alleged in the complaint that the respondent in consideration of the assignment of the contract to him by Sykes, agreed and promised to discharge the mortgage when it fell due. And although this promise is not such an one, perhaps, as would be enforced in law, yet it does not weaken the equities of the case against him.

Being satisfied that the complaint does state facts sufficient to constitute a cause of action, we do not feel called upon to enter into a fuller examination of the case at this time.

The order of the circuit court sustaining the demurrer to the complaint, must be reversed and the cause remanded for further proceedings.