Fisk v. Brunette , 30 Wis. 102 ( 1872 )

DixoN, C. J.

No question as to the defendant’s right to redeem is before us on this appeal. The court below decided he had such right, and in that decision the plaintiff acquiesces. The only question before this court, therefore, is whether the account was correctly stated by the court below, and we are of opinion it was not. The right of redemption being established, and it appearing that the plaintiff held the legal title in trust for the defendant Brunette, and as security for the moneys due him on the mortgages and the various sums advanced by him, it seems clear that the court was in error in the allowances of interest which were made, and especially on the tax certificates which were bought in and held by the plaintiff for a number of years, and upon which the court allowed him interest at the rate of twenty-five per cent, per annum, down to the daté of the judgment. The purchase of such certificates by the plaintiff must be regarded as having been for the protection of the estate and for the mutual benefit of himself, and his cestui que trust In other words they must be regarded as so much money advanced to the cestui que trust upon the faith of the security, and on which only the ordinary or lawful rate of interest for moneys loaned could be charged from the dates of purchase. Such, in equity at least, must be presumed to have been the intention of the plaintiff, and such the obligation which equity will impose in the statement of the plaintiff’s account. It is the opinion of this court that the account should be re-stated in conformity with this principle. The plaintiff should be allowed interest only at the rate of seven per cent, per annum on all sums of money actually paid out and advanced by him from the date of advancement, except upon the mortgage of September 5th, 1859, for $200, which by its terms drew interest at the rate of twelve per cent. There should be a rest in the account and a balance struck as of December 27th, 1866, when the Shettler mortgage was paid. Up to that date the interest should be computed on all other sums advanced from the time of advancement at the rate of seven per cent., and on the $200 mortgage at the rate of twelve per cent., and from the sum total so found due, the payment received by plaintiff through the Shettler mortgage should be deducted, and upon the balance thus remaining the plaintiff should be allowed interest at seven per cent, to the date of judgment. The judgment should' also provide for the payment of interest at like rate on the sum adjudged due by it to the day of redemption, within such reasonable time as shall be fixed for that purpose by the court. We observe also that in the judgment which was rendered it was provided that it should be without costs to either party. This was a reasonable and proper provision to make, and one which should again be made on the re-entry of judgment in pursuance of this opinion.

By the Court. — Judgment reversed and cause remanded, with directions that tbe court proceed to re-examine and re-state tbe account in conformity witb tbe views above expressed, and that judgment thereupon be rendered accordingly.