Atkinson v. Hewett , 63 Wis. 396 ( 1885 )

Obtox, J.

In 1876 a tax deed was executed to the defendant Eewett of the premises in question. In 1878 Eewett conveyed the same to Thomas Chadwick. In 1879 Chadwick mortgaged the same to the plaintiff. It is claimed by the learned counsel of the appellants that when Eewett received said tax deed he was part owner of the premises and a tenant in common with others, and that, therefore, his purchase of the same at tax sale was a redemption thereof, or a payment of the tax; but it appears by the finding of the court that the deed by which he acquired his interest was not recorded until after the plaintiff’s mortgage was recorded, and that the plaintiff had no notice thereof. It is elementary that the plaintiff was not affected or hound by such a secret equity.

It is also found by the court that the land was unoccupied and wild, and its entire value consisted of the pine timber thereon, and that the mortgagor, Chadwick, was and is insolvent. It is further found that the defendants knew that said premises were so mortgaged to the plaintiff, and that Chadwick was insolvent, and that cutting and removing the timber from said premises would impair the plaintiff’s security; and that in the winter of 1879 and 1880 they entered upon said premises and cut and removed the timber therefrom, against the will of the plaintiff, and converted the same to their own use. This action is brought for the value of such timber, to be applied fro tcmio on the plaintiff’s mortgage.

Every question involved in this suit was disposed of in the case between these same parties, in 51 Wis. 215, except that of the interest included in the judgment. That suit was for an injunction against the defendants cutting this timber; and the decision that the plaintiff was entitled to such injunction by reason of the same facts here found, settles the question of his right to this judgment for cutting off such timber after the injunction was dissolved by the circuit court. There can be no doubt that the defendants knowingly and wilfully cut the timber. Its value was found to be $1,687.50. There was due on the mortgage at the time of the findings, including ten per cent, interest stipulated in the note, $1,127. This amount the plaintiff lost by the trespass. It is within the amount of the value of the timber. There was no other correct way of computing the amount. It is the fault of the defendants that the mortgage has continued to run, and the interest thereon at ten per cent, to accumulate. If the defendants had not destroyed the plaintiff’s security by his mortgage by rendering the land worthless by cutting off the timber, the plaintiff would have been entitled to a judgment of foreclosure for the same amount computed here, and this is the precise amount he had lost. The conclusions of law and the judgment are correct, under the pleadings and findings of fact.

By the Gourt. — The judgment of the circuit court is affirmed.