Webb v. Meloy , 32 Wis. 319 ( 1873 )

LYON, J.

I. At the time Meloy took the conveyance of the equity of redemption in the mortgaged premises, it is very clear that in equity there was no merger of his prior incum-brances with the title thus conveyed to him. In equity such incumbrances doubtless remained in full force and paramount to the lien of the plaintiff’s mortgage, notwithstanding such conveyance. Wé think that the learned counsel for the appellants has fairly demonstrated, on principle and by authority, that this proposition is correct.

But the sale and conveyance of the mortgaged premises by Meloy to Blain for a price sufficient to pay off all of the in-cumbrances in full, including the mortgage of the plaintiff, together with the sum paid for the equity of redemption, presents the case in a very different aspect. The fact that Meloy received no cash on such sale, but took back a mortgage for the whole price, is immaterial. There is no claim that the security is not ample; the interest reserved is ten per cent.,payable annually, and it may be that Meloy preferred the mortgage to a cash payment. However that may be, we think with the circuit judge that the giving of the mortgage for the price is equivalent to a cash payment, and that the case is to be determined precisely as though Meloy had received $2,025 in cash for the premises.

Had Meloy foreclosed the Kennedy and Barlow mortgages instead of buying the title of Neugent and wife, the mortgagors, and had the premises been sold on such foreclosure for the price paid by Blain therefor, as a matter of course the plaintiff would have been entitled to have his mortgage paid out of the proceeds of such foreclosure sale. What difference can it make that, instead of foreclosing, Meloy purchased the equity of redemption, and then sold the premises at private sale for a sum sufficient to pay off and discharge all of the in-cumbrances? We can perceive no difference in principle in the two methods, and we think that the circuit judge held correctly that equity will, under the circumstances of this case, regard the sale to Blain for $2,025, as- equivalent to the sale of the premises for the same sum on a foreclosure of the prior mortgages. This principle seems so manifestly just and equitable that argument is scarcely needed in support of it. Why should Meloy obtain any greater rights by his voluntary purchase and sale of the premises, than he would have obtained bad they been sold for the same sum on his foreclosure of the Kennedy and Barlow mortgages? dSJo reason or justice is perceived in keeping alive the prior incumbrances for the benefit of Meloy after he has received the full amount of them and sufficient to repay the sum paid for the equity of redemption, and to pay the plaintiff’s mortgage, by his sale to Blain. And inasmuch as there is no claim or pretense that Meloy is, not pe-cuniarily responsible, and fully able to respond in damages for any breach of his covenants in his conveyance to Blain, there seems to be no good reason why such prior incumbrances should be kept alive for the benefit of Blain. How the case would stand were Meloy insolvent, it is not necessary to determine here. The substance of the whole matter is. that Meloy has received money (of its equivalent) which equitably he ought to apply in payment of the plaintiff’s mortgage. Failing to do so, if the premises are sold to satisfy such mortgage, and Blain's title is thereby defeated, Meloy must respond to Blain in damages for breaches of his covenants contained in the conveyance to the latter.

II, The bill of exceptions purports to contain all of the testimony given on the trial, and the record before us-does not furnish the slightest affirmative evidence that the notice of the pendency of the action required by statute was filed in the office of the register of deeds. R. S., ch. 124, sec. 7. Neither does the record show that there was no proof before the court of the filing thereof. It is silent on the subject. Proof of such filing should have been made, or the judgment is irregular. But it was not necessary to make such proof at the trial. It could as well and as effectually have been made before or after the trial. It has nothing whatever to do with any of 'the issues in the action. Hence the fact that' such proof is not contained in the bill of exceptions, which only contains the testimony given on the trial, is by no means conclusive that the court, when it rendered judgment, had not such proof before it. Indeed, we must presume in favor of the regularity of the judgment (nothing appearing in the record to the contrary), that the, court had before it proof of the due filing of such notice. Such must be the presumption, unless the record shows affirmatively, as in the case of Cciilin v. Pedriclc, 17 Wis., 88, that the requisite proof was not made. Upon this record, therefore, the objection that the judgment is irregular for the reason that no proof of filing a lis pendens was given, is not available to the appellants.

It follows from the views above expressed, that the judgment of the circuit court should be affirmed.

By the Court.— Judgment affirmed.