Haggerson v. Phillips , 37 Wis. 364 ( 1875 )

RyaN, C. J.

I. The objection to the complaint urged in support of the demurrer is, that the respondent does not tender payment of the principal and interest which she admits to be equitably due on the' mortgage; and Rietz v. Fœste, 30 Wis., 693, is cited for the objection. There the suit was prosecuted to cancel the mortgage, as void for usury; and, in deciding it, as in other cases of the kind, the court held that the party seeking the aid of a court of equity to cancel the instrument void for usury, must first tender payment of the sum actually due. In the absence of a different statutory regulation, this is understood to be the universal rule in such cases. Draper v. Emerson, 22 Wis., 147.

But that is not this case. The complaint does not ask to cancel the security, or claim that it is void, or insist upon any penalty or forfeiture for usury. It leaves the mortgage unim-peached, to stand for the full balance of principal lent upon it, and interest, and seeks only to restrain the sale of the mortgaged premises for more. When the security is given up and cancelled for usury, the creditor loses his actual debt, unless payment of it be made a condition of the relief. But in the case before us, there is no equitable condition precedent to relief, because judgment on the complaint would deprive the appellant of nothing which in equity he ought to have. His security and his remedy on it will stand for all that is due to him. Had he brought an action of foreclosure, the respondent could have defended against the amount, without condition. The statutory foreclosure undertaken by the appellant deprives her of that opportunity of defense. She can obtain the same redress by a suit of her own only; and there is no doubt of her right to bring one. Encking v. Simmons, 28 Wis., 272. And there is no equitable condition to her right, in the one case or the other.

II. This was the only ground of demurrer relied on at the bar. But there is another, so patent in the record that we cannot overlook it.

The respondent pleads that she is the widow of the mortgagor, but not his personal representative. And she does not plead that the mortgagor died seized of any estate in the mortgaged premises, or that she has-any. She therefore shows no color of right to prosecute this suit. This is a fatal defect in the complaint, on demurrer, which may probably be curable by amendment, which ought to be allowed.

But, for this reason, the demurrer was well taken; and the order overruling it must be reversed.

By the Court. — Order reversed.