Briggs v. Seymour , 17 Wis. 255 ( 1863 )

By the Court,

DixoN, C J.

Whether the transaction between the defendant and Bacon, and subsequently assented to by the plaintiff, was a conditional sale or a mortgage, we need not inquire. It is enough that the parties, both by the complaint and answer, have treated it as a mortgage. The right of redemption is favored in the law; and where it is admitted by the pleadings, courts will not scan the transaction very closely for the sake of defeating it. Taking the parties at their word, we hold the interest of the plaintiff to be that of a mere mortgagee.

The first $1,000 note secured by the Truesdell mortgage, and now in the possession of the defendant, is extinguished. The proof shows that it was obtained by the defendant by payment at a time when he was responsible for the debt. The mortgage thenceforth ceased to be a lien on the premises pro tanto, and the note is of no avail in the hands of the defendant as a lien or evidence of any equitable interest whatsoever. But if this were not so, the defendant is estopped by the transaction with Bacon. He then represented the mortgage as a subsisting lien only for two of the notes, that held by Bacon and the one owned by Campbell. He cannot now, because it serves his interest, bring forward the note in his possession, and claim that as a lien also.

The recital in the deed to Bacon does not estop him or the plaintiff from showing the real sum due upon the mortgage, the payment of which Bacon assumed. The language is descriptive, and is as appropriate after one of the notes was can-celled as it would have been before. The mortgage was still properly described as “for the sum of three thousand dollars.”

No evidence was given in support of the first counter-claim, and the second and third are clearly insnflicient. No liability on the part of the plaintiff is shown in either. The goods and merchandize delivered to William Seymour, as stated in the second, are not averred to have been delivered at the request of the plaintiff or upon his responsibility. And the cause of action set out in the third is one in favor of William Seymour, and not of the defendant.

So far there is no error in the proceedings. But as the transaction was subsequent to the act authorizing the redemption of lands sold under foreclosure (Laws of 1859, chap. 195), and as the judgment does not provide for such redemption, it must be modified in conformity with the act. Jones v. Gilman, 14 Wis., 450.

Ordered according^.