Schneider v. Miller ( 1913 )

BaeNes, J.

This action was.brought' in October, 1911, to foreclose a mortgage given to secure the payment of three notes dated October 28, 1903, and which by their terms became due in one, two, and five years from date. In April, 1912, the summons and complaint were amended so as to bring in additional parties, and they were again amended in August, 1912, for the same purpose. The defense interposed was that the time of payment of the notes had been extended so that there was nothing due when the action was brought. It was also alleged that plaintiff was not' entitled to have a receiver appointed, because the premises constituted the homestead of the mortgagors and because a receiver had already been appointed in another action. The court found all the issues in favor of the plaintiff. The mortgagors, John and Anna, Miller, appeal from the judgment, as does Julia D. Bowers, the assignee of a second mortgage on the premises. A. G. Rudolph, the receiver appointed in the action brought to foreclose a second mortgage on the premises, also appeals.

The errors relied on are: (1) Failure to find that the time of payment had been extended. (2) Refusal to hold that the mortgaged premises were the homestead of the mortgagors. (3) Appointment of a receiver. (4) Allowing interest on past-due instalment of interest and on amount paid by mortgagee for insurance. (5) Allowing costs and $100 solicitor’s fees. (6) Ordering a judgment for deficiency against Anna Miller. (7) Allowing the second amendment' to the complaint. (8) Making findings which failed to dispose of the issues in the case.

1 and 2. The finding of the court that the time of payment of the notes was not extended to or beyond the time when the action was begun is amply supported by the evidence. So is the finding that the premises were not the homestead of the mortgagors. This being so, on the showing made the case was a proper one for the appointment' of a receiver.

3. The second mortgagee was made a party in the present suit. After plaintiff applied for a receiver and after notice of lis pendens had been filed, such second mortgagee commenced an action to foreclose his mortgage, the plaintiff not being made a party thereto. Subsequently the- mortgage was assigned to Mrs. Bowers, who proceeded to take judgment by default and t'o have a receiver appointed, without notice to the plaintiff, to collect the rents and profit's of the mortgaged premises. The plaintiff, as the holder of ■the first lien on the mortgaged premises, was entitled to have the net proceeds of the receivership applied on her mortgage. The receiver appointed was made a party to the present action, and. filed an answer in which he stated that he was “entirely indifferent as to whether he is t'o continue as receiver or not.” The court had the right t'o remove the receiver already appointed and to name another in his stead, and in view of the allegation quoted from the answer of the receiver and the' fact that he appealed from the judgment without first' obtaining leave of court, we do not think he has any substantial ground on which to ask.a reversal of the judgment. The other appellants have failed to show that they were injured by the appointment of a new receiver. •

4. The mortgage expressly provided for the payment' of interest on past-due instalments of interest and also for interest on amounts disbursed for insurance; so there was no error in making such allowances.

5. The items of costs allowed appear to be legal, and the evidence showed that the solicitor’s fees provided for in the mortgage were reasonable.

6. The property mortgaged was owned jointly by the defendants John Miller and his wife, Anna. The mortgage was given to pay a prior mortgage on the same premises. The note was signed by both of the parties. Under these facts it was proper to provide for a deficiency judgment against Anna Miller. Kriz v. Peege, 119 Wis. 105, 95 N. W. 108; Citizens L. & T. Co. v. Witte, 116 Wis. 60, 92 N. W. 443. In the instant ease the wife assisted in borrowing the money to preservq her own property, and charged that property with tin? payment of the note which evidenced her own. debt as well as the debt of her husband.

We do not think there is any merit' in the seventh or eighth errors assigned. .

By the Court.-— Judgment affirmed.