Crane v. Aultman Taylor Co. , 61 Wis. 110 ( 1884 )

ORtoh, J.

The facts are briefly these: Cook and wife mortgaged the S. W. J of the 1ST. E. J of section 9 — land belonging to the wife — to the plaintiffs, March 11, 1878. This is the mortgage in suit. June 4, 1877, the Cooks mortgaged the same land, with the ET. W. £ of the S. E. \ of the same section, to one Thomas C. Smith. September 6, 1877, the Cooks mortgaged the first-mentioned fort}?- acres to the defendant The Aultman Taylor Company, but this mortgage was not recorded until May 3,1878, long after the plaintiffs’ mortgage was recorded, which gave the plaintiffs’ mortgage preference. Smith foreclosed his mortgage and bid in both tracts, November 16,1818, and the plaintiffs purchased and had assigned to them, the certificate of sale, March 22, 1879. The Cooks sold and deeded both tracts to the defendant The Aultman Taylor Company, September 26, 1879, in consideration of $400, which was receipted on its mortgage, leaving Cook still indebted to it on that mortgage $310. The Aultman Taylor Company then redeemed both tracts from the foreclosure sale to Smith, November 13,1879, by paying the money to the sheriff, and took a deed from the sheriff for both tracts, on that redemption, March 17, 1881. The plaintiffs paid taxes on the land covered by their mortgage, and taxes on the other tract, also, while they held the said certificate of sale, and some afterwards.

The defendant The Aultman Taylor Company contends that the plaintiffs’ mortgage was discharged or wiped out by the foreclosure of the Smith mortgage, and sale, and its redemption thereof and taking a deed. When this defendant redeemed, it had purchased and owned the premises in fee, but it is contended that it redeemed as a subsequent mortgagee also. There is no doctrine better settled than that the defendant’s mortgage was merged in its higher title by deed from the mortgagor. The $310, not a part of the consideration, was no longer a mortgage debt against the land, but a mere debt of the mortgagor. The various statutes and authorities cited are foreign to such a case. When the defendant redeemed, it was the owner of the equity of redemption, and it operated only as a payment of the mortgage. The taking a deed of the sheriff did not give the defendant any better title than it had before, or any preference against the plaintiffs’ mortgage. It did not purchase the certificate of sale as a stranger, but as the owner, and such pretended purchase is properly called by its learned counsel in his brief a redemption. To allow the claim here made by the defendant would be a profitable discovery to a mortgagor of several mortgages executed at different times. He could allow a foreclosure of the first mortgage and bid in the premises at the sale, and thus discharge and cancel all the subsequent ones.

There is more question as to the attitude of the plaintiffs in purchasing and taking an assignment of the certificate of sale of Smith as to the tract which was not covered by their mortgage. As to that tract they were strangers, and had no right to redeem, so that the assignment to them of the certificate of sale as to that tract was a purchase rather than a redemption. But, as the plaintiffs have ■ made no question of this, it is immaterial, and is only mentioned by way of illustration, for the defendant had the right to redeem both tracts as the owner, and standing in the place of mortgagor. This matter is clear and quite apparent, and involves only commonly admitted principles of mortgage equity.

There is error, however, in the judgment as to the taxes embraced in it. The plaintiffs had no right to pay any taxes upon the tract not embraced in their mortgage and tack them to it. This error or excess must work a reversal of the judgment.

By the Court.— The judgment is reversed and the cause remanded with direction to the circuit court to render the same judgment, less the amount of such taxes as. were chargeable to the U. W. £ of the S. E. £ of section 9, town 23, range 13, and embraced in the present judgment.