Peterson v. Oleson , 47 Wis. 122 ( 1879 )

Lroisr, J.

The bond which the mortgage was given to secure, is not conditional for the support and maintenance of the mortgagees, but for the payment of life annuities in specific articles. The learned counsel for both parties seem to agree that foreclosure of the mortgage and sale of the mortgaged premises is the proper remedy, and not rescission of the contract, as in Bogie v. Bogie, 41 Wis., 209, and Bresnahan v. Bresnahan, 46 id., 385. We concur in this view.

The- court found, substantially, that the mortgaged premises cannot be sold in parcels without injury to the parties interested, and proceeded to ascertain the present money value of the plaintiff’s life annuity, using for that purpose the Northampton tables. These tables are adopted in the new circuit court rules, and we think they were properly used in the present case, in the absence of any rule on the subject. Nothing inconsistent with this was said in Berrinkott v. Traphagen, 39 Wis., 219, although it was there suggested that perhaps life tables prepared at a later time might give the average probable duration of life in this country with more accuracy than it is given in the Northampton tables.

We find certain errors in the accounting and judgment, which must be corrected:

1. The wood was due but once in two years, and the accounting makes it due annually. The mortgagor is charged $38.50 annually for wood and cutting it, whereas he should only be charged one-half that sum. It was conceded on the argument that this correction should be made. We find no other error in the amount of the annuity. The annuity is therefore $69.74 instead of $89.49. The interest on the payment overdue will be correspondingly reduced, as will also the present value of the annuity.

2. The item of $100, allowed prospectively for care and attendance in sickness, must be stricken out. That is a stipulation for the performance of a filial duty, the value of which it is quite impossible to estimate prospectively in dollars and cents.

3. The judgment should permit a redemption by the payment of a sum actually due on the bond, with solicitor’s fees, interest and costs, at any time before sale; leaving the plaintiff at liberty to apply for a further judgment in case of any future default. For the purposes of future payments, the annuity will be $69.74, payable in cash.

In all other respects, we think the accounting and judgment are correct.

By the Court. — The judgment is reversed, with costs, and the cause wjJHre remanded with directions to the circuit court to render judgment for the plaintiff as above indicated.