Rosenthal v. Rosenthal ( 1911 )

Siebeckee, T.

The proofs in this case, as stated above, ■establish that the plaintiff acquired a title in fee to the premises under the deed from his mother, Justine Schmidt, and the quitclaim deeds from all of the heirs of Carl Rosenthal, the mother’s first husband, from whom she and the other defendants, including the defendant August Rosenthal, ac■quired whatever interest they had in the premises. Under these circumstances it is not necessary to determine whether -or not Justine Schmidt was given an absolute power of disposition in addition to a life estate under the will of her first husband, Carl Rosenthal, as was determined by the county •court in assigning the estate in the probate proceedings. Plaintiff’s record title under the deeds is a sufficient basis to. establish title in the plaintiff without reliance on such power of disposition in the mother under the will. It also appears, that these conveyances by the plaintiff’s mother and his brothers and sisters, including the defendant August Rosenthal,. were not to satisfy and cancel the mortgage in question, but that this mortgage was to continue in force as a subsisting, and binding mortgage up to the time of the mother’s death,, which occurred July 26, 1909.

The defendant August Rosenthal contends that the plaintiff states no cause of action for relief to remove a cloud from his title because -he could have obtained the relief of satisfaction of the mortgage under sec, 2252, Stats. (1898), which provides for the discharge of mortgages on ex parte application by order of the circuit court upon the requisite showing being made, establishing satisfaction of the mortgage, that the mortgagee is deceased, and that there has been no administration of the decedent’s estate under the authority of this state.

The facts in this case show that the mortgagee left surviving her a husband and a number of .children who were interested in any claim arising under this mortgage, which stood as a claim against the plaintiff and his land. It is obvipus that the plaintiff was entitled to have the alleged rights of Justine Schmidt’s heirs under the mortgage ascertained and determined. This could not be-accomplished in a proceeding under sec. 2252, Stats. (1898), and hence the claim that this section would afford him all the relief the law could award is not correct. The order of discharge entered by a court under this section would not bind the heirs who could not be made parties thereto. To obtain such relief necessitated the institution of an action whereby plaintiff could compel the defendants to assert such rights as they might claim to have under the mortgage and therein force a determination of any disputed question arising out of the mortgage, which 'Re alleges clouded the title to the land it covered. An action for the removal of the cloud created by this mortgage on plaintiffs title to these premises is the appropriate remedy for relief against any apprehended injuries which might he •occasioned to the plaintiff by any claims the defendants might ■assert under this mortgage. We consider that the plaintiff’s allegations establish such a cause of action. Since the defendant chose to litigate this question he became liable for the costs when judgment went against him on the merits.

In view of the fact that the plaintiff acquired title to the premises in question under the deeds of conveyance from the appellant and the other defendants and his mother, the appellant’s alleged defense that the proceedings for the probate of the will were irregular and invalid and hence that the plaintiff acquired no title to the premises is wholly immaterial and no prejudicial error was committed in striking it from the pleadings.

We find no reversible error in the record.

By the Court. — Judgment affirmed.