Bean v. Fisher , 14 Wis. 57 ( 1861 )

By the Court,

Cole, J.

We do not feel called upon to decide in this case the question whether, the Racine and Mississippi Railroad Company could make in 1855 a valid mortgage of its property and franchises to the Farmers' Loan & Trust Company. Because if we assume that the railroad company had the power to make such a mortgage, still it seems to us that the order of the circuit court setting aside the judgment which was entered on the 28th day of December, 1859, and permitting the Loan and Trust Company to come in and defend in the action to foreclose the contract given by tbe respondent to Fisher and Goodhue, and bearing date April 1, 1856, must be reversed. Tbe ground, of course, upon wbicb tbe Farmers' Loan & Trust Company bases its right to come in and defend that action is, that its mortgage carried with it all after acquired property for depot grounds, and that consequenty tbe quit-claim to Bushnell subsequently made by tbe railroad company was subject to its mortgage. This being so, bow were its rights affected by tbe decree wbicb was made in tbe cause ? It was not a party to those proceedings, and could not be bound by them. If its mortgage takes precedence of tbe conveyance to Bushnell, or if, in other words, tbe Farmers' Loan & Trust Company has become tbe owner of tbe property, franchises and effects of tbe railroad company, and entitled to take its place in all contracts, we cannot see -why that company may not discharge tbe amount due on tbe Bean contract, and claim tbe deed from him. What prevents tbe Trust Company from doing this, if its view of tbe rights wbicb were acquired by tbe mortgage be correct? We can see no obstacle to tbe Trust Company fully securing all its rights and interests in this manner, and we think it tbe more regular and proper course of proceeding. Whatever may be the conditions of tbe judgment entered on tbe 28th of December, 1859, since tbe Loan Company was not made a party to that suit, it is obvious it cannot be concluded or bound by that judgment. It still has tbe right to pay off and discharge tbe Bean contract, if it ever bad that right, unaffected by tbe judgment wbicb has been entered. Tbe order, therefore, of tbe circuit court, setting aside tbe judgment entered on tbe 28th of December, 1859, and permitting tbe Farmer's Loan & Trust Company to come in and answer, should be reversed.

Order reversed.