Levy v. Martin , 48 Wis. 198 ( 1880 )

Cole, J.

The application for a change of the place of trial was founded on the affidavit and made in behalf of the defendant Martin, alone. It was therefore properly denied, under the decisions of this court in Wolcott v. Wolcott, 32 Wis., 63; Rupp v. Swineford, 40 Wis., 28; State ex rel. Cuppel v. The Chamber of Commerce, 47 Wis., 670. The learned counsel for Martin attempted to distinguish this case from the above; but we think it comes fully within the principle of those decisions.

The really important question in the case is, whether the plaintiff, upon the undisputed facts, is equitably entitled to a prior lien to the extent he would have if, as assignee, he were foreclosing the $600 Martin mortgage. It is insisted by his counsel that the circumstances under which he advanced his money to pay that mortgage justly entitle him to such priority in this action, and that he should be .treated as succeeding to the rights of Martin under that mortgage. This right, it is said, is founded upon the principles of subrogation which this court has recognized and enforced in other strictly analogous cases. Morgan v. Hammett, 23 Wis., 30-40; Blodgett v. Hitt, 29 Wis., 169; Winslow v. Crowell, 32 Wis., 642-662; Mohr v. Tulip, 40 Wis., 66.

If this position is sustainable in law, it will, of course, be immaterial to inquire as to what interest or estate was encumbered by the two mortgages given Martin by Mrs. Richter and husband, April 30, 1873,'and April 22, 1874. It is assumed, for the purposes of the case, that Martim acquired some interest or lien under these mortgages upon the premises sought to be sold in this foreclosure suit. It was admitted on the trial, by the plaintiff, that Mrs. Eul (who after-wards married Henry Bichter) had her dower interest in the land described in the mortgages, at the time of her husband’s death, and that such interest continued. This admission cannot properly be disregarded, and will not be.

It is not claimed that this right of subrogation, or to a prior lien, depends upon any express agreement made with Martin that his mortgage should be assigned or kept alive for plaintiff’s benefit. It is a fair inference, however, from the evidence, that, the plaintiff’s agents, when they loaned the money to the executors to take np that mortgage, expected it would be assigned and not paid, and that this was one inducement for making the loan. Mrs. Richter testified that she told Becher and Milbrath, when she applied for the' loan, that she' would get an assignment from Martin, but when she asked him to assign it he refused, unless his other mortgages were paid. In this, aspect, the case comes very nearly within-the ruling in Downer v. Miller, 15 Wis., 612, where there was an agreement between Miller and Steever that the former was to indorse a note for the latter to raise money at the bank, to be used to procure an assignment of a foreclosure judgment t,o Miller, in order to indemnify him as indorser. The money was in fact used to pay and extinguish the judgment of foreclosure. This was held to be a fraud upon Miller, and he was permitted to enforce the judgment and collect the amount that he had paid.

But, independently of any agreement upon the subject, it is insisted that the plaintiff has an equitable right to have his mortgage declared a prior lien; and we think this claim must be sustained to the extent of the amount due on the $600 mortgage, and the taxes paid out of the money advanced to the executors by the plaintiff. The grounds for that relief rest upon principles of natural justice and equity, which are amply vindicated in the decisions above cited, especially in the exhaustive opinion of Mr. Justice LyoN in Blodgett v. Hitt. The plaintiff loaned his money to the executors to pay off the $600 mortgage and taxes, which were incumbrances upon the property, and confessedly liens prior in right and superior in equity to any lien that Martm acquired under his mortgages of 1873-1. This $600 mortgage was given by the testator and 'wife to Mcmdin in 1869, was past due, and Martin wanted' his money. ' The plaintiff íoaned his money at the solicitation of the executors, to take it up and relieve the estate. It is true, the plaintiff took from the executors at the time the $800 mortgage in suit, relying upon the validity of the license of the probate court of Racine county authorizing and directing the executors to execute that mortgage for the purpose of procuring this loan. But it is conceded that this license is defective and does not bind the heirs; consequently the security upon which the plaintiff relied has practically failed. Still his money has been applied to the discharge of just debts against the estate, and he has the prior right to be reimbursed out of the estate to the extent of the incumbrances which he has removed.

It is objected that in furnishing the money to discharge these incumbrances he was a mere volunteer, in whose behalf there can be no subrogation. But the plaintiff loaned his money at the request of the executors, relying upon the validity of the. mortgage which they had been ordered by the probate court to execute, and is not to be treated as a volunteer in the legal sense of that term. The case of Blodgett v. Hitt is decisive upon that point. See also Payne v. Hathaway, 3 Vt., 212. This case is distinguishable in its facts from Watson v. Wiloow, 39 Wis., 643. There the plaintiff was treated simply as a volunteer, advancing his money to pay a debt merely as an investment. Here the plaintiff advanced his money at the request of the executors, relying upon the validity of a judicial proceeding, and to discharge incumbrances upon the estate. It is not just to say that in this he was governed solely by a spirit of speculation, without regard to the advantage or interest of the heirs. Certainly it does not lie in the mouth of the heirs to say, under the circumstances, that the plaintiff was a volunteer, and is not entitled to be reimbursed out of the estate to the extent of the incumbrances removed. Uor has Martin any ground to complain because the plaintiff is substituted to his rights under the $600 mortgage. It is insisted by his counsel that he has some intervening right which will be prejudiced or defeated if this subrogation takes place. But what intervening right has he? The $600 mortgage existed on the estate when he took the two mortgages given in 1873 and 1874; indeed, he held that mortgage. lie is, therefore, in'no position to say that he is injured by allowing the plaintiff a prior lien to the amount of that mortgage and the taxes actually paid out of his money.

Martin does not stand in the position that Knapp occupied in Pelton v. Knapp, 21 Wis., 64. There the attempt was to revive a mortgage as to previous- payments made, so as to take precedence of a judgment already attached in Knapp’s favor. The court held that while, perhaps, as between the immediate parties, mortgagor and mortgagees, it might be competent to revive the mortgage in favor of the party making the payments, yet this could not be done so as to displace the intervening interest of a third party; But the doctrine of that case does not seem to have any direct bearing on the one at bar, because here there is no intervening interest. If the plaintiff is subrogated to Martin’s rights under the $600 mortgage, Martin has precisely the same security he had before this mortgage was paid: no more, no less. So far as the mortgages given by Mrs. Eichter and husband are concerned, such priority would leave him just where he stood when they were executed. We have stated that Mrs. Eul (Eichter) had joined with her husband in executing the $600 mortgage in 1869. She only had a dower interest in the surplus remaining after the payment of that mortgage. Section 5, ch. 89, Tay. Stats. We assume that Mrs. Eichter mortgaged this dower interest to Martin by the mortgages given in 1873 and 1874. This is certainly all the estate she had in the property to mortgage at that time; and what hardship ean it be to place Martini in the same position he occupied when the $600 mortgage was paid? He has really the same rights and the same security for the payment of those mortgages that he had then. What ground has he then to complain of the subrogation of the plaintiff to his rights under that mortgage? Such subrogation will leave bim precisely where be was when the plaintiff advanced bis money to the executors. Of course, the plaintiff’s prior lien must be limited to the amount which would be collectible on a foreclosure of this mortgage, and this would include taxes actually paid -out of his funds, but not the expenses of administration nor any other charge which could not properly be recovered in the foreclosure of that mortgage.

The bill of costs as taxed in this case seems excessive and incorrect. It must he corrected, and all erroneous items stricken out, when judgment is again entered. It is not necessary for us to stop and point out these erroneous charges at this time.

By the Qourt. — -The judgment of the circuit court is reversed, and the cause is remanded with directions to that court for the entry of the proper judgment according to this opinion.