Jamison v. Gjemenson , 10 Wis. 411 ( 1860 )

By the Court,

Paine, J.

We think the judgment in this case must be affirmed. It is very clear from the evidence that Preus acted as the agent of Larson, and not of the plaintiff, or of Hasbrouck & Gurnee. His knowledge, therefore, was no notice to them.

We think it very clear, also, that the plaintiff’s mortgage was entitled to priority. Hasbrouck & Gurnee were agents both of the plaintiff and of Wm. C. Hasbrouck. As agents of the plaintiff they had his money to loan; as agents of Wm. C. Hasbrouck they had the prior mortgage for collection. Instead, therefore, of handing the plaintiff’s money over to Larson, on the loan for which this mortgage was given, and then taking it back from Larson in payment of the mortgage of Wm. C. Hasbrouck, they had him execute this mortgage and deliver it, and they put on record, at the same time, a satisfaction of the mortgage of Wm. C. Has-brouck. They then held the money for Hasbrouck. And even though they received notice of Gjemanson’s mortgage before it was remitted to him, this does not bring it within the rule of notice before payment of the purchase money. The purchase money was paid to Larson by the satisfaction of Hasbrouck’s mortgage. That could not be recalled ; and the transaction was substantially the same as though the money had been paid to Larson on the loan, and then paid back by him to the agents of Wm. C. Hasbrouck, to. take up his mortgage. It was Hasbrouck’s money, and the entire consideration as between the plaintiff and Larson had been

As to the judgment drawing interest at twelve per cent., and the question whether the plaintiff gave notice of his election to have the whole sum become due ; we think the appellant has not shown any right to raise any question as to them. We held at the present term, in the case of Boyd vs. Sumner and the Bank of Milwaukee et al., supra, 41, that a subsequent incumbrancer could not raise the question whether the stipulation in a prior incumbrance was for a penalty or valid interest, without offering some proof to- show that the premises might not, on sale, be sufficient to pay the judgment as rendered, and the subsequent incumbrancer. If they would clearly be sufficient to pay both, the subsequent incumbrancer would not be aggrieved by the judgment. And the only effect of reversing it at his suggestion would be to benefit a party who had not appealed. We think the same rule applicable here. There is no proof to show that the premises are not sufficient to pay the judgment as it stands, and also the appellant’s mortgage. If they are sufficient, he has no right to raise questions between other parties who are'satisfied with the judgment, and the decision of which either way, qannot affect his interest. We think the burden is on the party appealing, to make it apparent that he may be aggrieved by the decision to which he objects. .

The judgment is affirmed with costs.