Wilson v. Burhans , 96 Wis. 550 ( 1897 )

Maeshall, J.

Fairly construed, the allegations of the counterclaim state as facts that defendant gave a real-estate mortgage to secure the payment of the note sued on, that the mortgage came into the possession and ownership of plaintiff with such notes, and that he retained the same not-withstanding the action at law to recover the indebtedness. • The allegation that the plaintiff had not accounted for the mortgage; but had converted the same to his own use, obviously means no more than indicated. ¡That plaintiff had a right to retain the mortgage, and proceed at law to collect the indebtedness, requires no discussion. The mortgage, while outstanding as security for the indebtedness evidenced by t,he notes, did not constitute property subject to conversion, to defendant’s damage, by plaintiff or any one else. Defendant had no property, strictly so called, in the mortgage. It had no value independent of the indebtedness it was given to secure. Upon payment of such indebtedness the mortgage would become valueless, and defendant would be entitled to have it discharged; and the remedies to that end are ample, but an action to recover the mortgage, as-property, or its value, is not one of them. The answer clearly did not show facts sufficient to constitute any defense or counterclaim to the causes of action set forth in the complaint. It was clearly frivolous, and was properly stricken out as such.

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