Blakely v. Twining , 69 Wis. 238 ( 1887 )

Qassodat, J.

Rone of the defendants answered or appeared in the case, except Peter S. Twining, who executed the $642 note and mortgage July 31, 1872, upon which this action is brought. He seeks to reduce the amount of the judgment.

1. There is no claim that he ever made any payment thereon, except the one dollar paid July 5, 1881, and the $700 paid May 14, 1886. After giving him credit for both of those payments, the trial court found there was still duo from him thereon, December 8, 1886, a balance of $859.78. If he is entitled to have no allowance except those two payments, then the amount still due from him thereon cannot be less than the amount thus found; for that note and mortgage drew interest from date at the rate of ten per cent, per annum.

2. It is claimed, however, that the plaintiff is not entitled to judgment for the amount of the 'Weiner note and mortgage which U. 0. Twining assumed and agreed to pay, and which was consequently included in the $642 note and mortgage. U. 0. Twining is not a party to the action. Ho objection was or is made by reason of the omission. This being so, it may be questionable whether Peter 8. Twining is in a position to prevent judgment being taken against him for the full amount so found due from him on the $642 note and mortgage, in favor of the plaintiff, who holds the legal title thereto, even if H. C. Twining were equitably entitled, as against the plaintiff, to such share of the judgment, when collected, as represented the amount of the Weiner note and mortgage. J3ut assuming that Peter 8. Twining may traverse such equities without H. G. Twining being a party to the suit, still it is confessed that Peter 8. Twining never paid the amount of the Weiner note and mortgage so assumed, nor anj? part of it. This being so, he was justly liable to have judgment taken against him for the amount so found due on the $642 note and mortgage, in favor of somebody, notwithstanding any such equities.

The facts in relation to the Weiner note and mortgage were not such as to relieve Peter 8. Twining from paying any portion of the $642 note and mortgage. It conclusively appears that those facts were unknown to the plaintiff, April 29, 1814, when he loaned to N. C. Twining the $950, and took a transfer to himself of the $642 note and mortgage as collateral security. So they were unknown to him June 14, 1875, when, at the instance and request of N. C. Twining, he paid the $210 on the foreclosure of the Weiner note and mortgage, and took an assignment thereof, under the agreement between them that he should also hold the $642 note and mortgage as collateral security for the repayment of the amount so paid. Those agreements and payments fixed the equities between the plaintiff and N. C. Twining respecting the matters mentioned. By virtue of those agreements and payments, the plaintiff had the equitable as well as the legal right to hold the $642 note and mortgage for the full amount, as collateral security for the repayment of the $950 and $210, and interest, not only as against Peter 8. Twining, but also as against N. C. Twining.

The mere fact that the plaintiff ascertained, in 1883, that July 31, 1872, N. C. Twining had assumed and agreed to pay the balance of the Weiner note and mortgage, and that the same was then included in the $642 nóte and mortgage, in no way diminished the plaintiff’s legal or equitable right to hold said last-named note and mortgage, as such collateral security for the full amount of his indebtedness against N. C. Twining; nor did it give any new right or equity which operated as a release of any part of such security, as against the plaintiff, to Peter 8. Twining, and much less to N. C. Twining. N. C. Twining never paid any portion of such Weiner note and mortgage to the plaintiff, nor to any one, but merely consummated the settlement previously made with the plaintiff, by giving his two notes for the amount, and continuing the agreement that the plaintiff should hold the $642 note and mortgage as collateral seen-rity to the indebtedness represented by said two notes, and the same was followed, in March, 18S6, by a written assignment thereof to the plaintiff. ' It follows that Peter 8. Twining is entitled to no reduction in the amount to be recovered, by reason of any equities -growing out of the "Weiner note and mortgage, nor any payment thereon, nor any agreement or payment respecting the same.

3. It is claimed that Peter 8. Twining is entitled to counterclaim or setoff, against the amount so found due, the amount of the note executed by N. 0. Twining and purchased by Peter 8. Twinmg from Williams, June 25, 1886. Certainly it could not be a counterclaim, because it did not exist against the plaintiff. Sec. 2656, E. S. Eor the same reason it is not available as a setoff. Sec. 4258, E. S. The claim sought to be interposed is against N. C. Twining, a stranger to this controversy. Besides, the Williams note was not purchased by Peter 8. Twining until long after the plaintiff’s legal and equitable right to recover the whole of the $642 note and mortgage, less the two payments mentioned, became fixed as against N. 0. Twining. This being so, such purchase could not frustrate, much less destroy, the plaintiff’s rights thus secured. As appears from the findings of the court, there was due to the plaintiff, December 8, 1886, from N. 0. Twining, on the several notes mentioned, in the aggregate, $918.62, whereas there was due from Peter 8. Twining, on the $642 note and mortgage so held as collateral, after deducting two payments made by him, as stated, only $859.78. Thus it appears that the whole amount of such collateral is insufficient to satisfy the plaintiff’s claims against N. C. Twining, and hence there can be no surplus to be turned over to him. The fact that there would have been such surplus had the plaintiff received the whole of the $700 payment, and collected the full amount of the judgment, in no way changes the equitable rights of the plaintiff. N. C. Twining took the $425 from the bank before Peter 8. Twming purchased the Williams note. Before such purchase, therefore, N. C. Twining, by taking and appropriating to himself so much of that payment, more than satisfied and discharged all subsisting equities in his favor in such collateral. This being so, it is idle to talk about an equitable setoff in his favor, much less in favor of Peter 8. Twining, by reason of such subsequent purchase. The findings are all supported by the evidence.

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