Stanley v. Goodrich , 18 Wis. 505 ( 1864 )

By the Court,

DixoN, C. J.

It is the opinion of the court, if tbe petition of Church bad been denied, and the judgment against Goodrich and others permitted to stand, that Church would have been cut off from all defense in an action by Goodrich against him upon the covenants in the deed. As between Church and Goodrich, Church is the principal debtor | and liable for the payment of the mortgage. He has covenanted against it. If the action had been instituted against Goodrich and others, omitting Church, and Goodrich had notified Church of its pendepcy, with a request that he defend, and tendered him the conduct of the defense, and Church had neglected to defend, or, on his defending, judgment had gone against Goodrich, in either case there can be no doubt that Church would have been concluded, and that, in an action against him upon the covenants in the deed, the existence or validity of the mortgage could not have been disputed. Adams v. Filer, 7 Wis., 306. It seems to the court, from the attitude of the parties to this action, that the same result must follow if the judgment entered is permitted to stand. Church was a party originally, properly made so with Goodrich, and duly served with process. Of this fact his co-defendant Goodrich was apprised, and being apprised, there was no necessity for his notifying Church of the pendency of the action or tendering him the conduct of the defense. Church was already notified, and had the defense in his own hands. This was equivalent to a notice and tender of the conduct of the defense in other cases; and if afterwards Church suffered a discontinuance as tó himself and judgment against Goodrich, he would still be bound. Eor these reasons the court is of opinion that the petition of Church stands upon a solid foundation of merit, and that the judgment was properly opened. The petition shows that Church intended in good faith to contest the mortgage upon the merits, that the demur-* rer was put in by the advice of counsel, and that the discontinuance operated in reality as a surprise upon him. Under such circumstances, it was no hardship upon the plaintiff to restore the action to tbe condition in which it was at the time the order of discontinuance was entered.

As to the omission of the word “ himself” in the covenants of the deed, we do not dwell much upon that. There can be no doubt of the intention of the parties; and if the covenants are not technically valid at law, a court of equity, in conformity to the intention of the covenantor, will very soon make them so.

Order affirmed.