Cottrell v. Shepherd

• Decision Date: 30 January 1894
• Citation: 86 Wis. 649,57 N.W. 983
• Parties: COTTRELL v. SHEPHERD ET AL.
• Court: Wisconsin Supreme Court

86 Wis. 649

57 N.W. 983

COTTRELL

v.SHEPHERD ET AL.

Supreme Court of Wisconsin.

Jan. 30, 1894.

Appeal from circuit court, Outagamie county; John Goodland, Judge.

Action by Nathan H. Cottrell against Henry Shepherd and others to foreclose a mortgage. There was a judgment of foreclosure, but the court refused to render a personal judgment for deficiency, and plaintiff appeals. Affirmed.Gerrit T. Thorn, for appellant.

Benjamin M. Goldberg, for respondents.

ORTON, C. J.

This is an action to foreclose a mortgage executed by the defendant Henry Shepherd, and Margaret, his wife, to the plaintiff, on certain premises, on the 19th day of October, 1877, to secure a note given by and to the same persons, of $250, at the same time, with 10 per cent. interest, payable the 1st day of June, 1883. The action was commenced August 9, 1890. On the 29th day of June, 1878, the said defendants sold and deeded the mortgaged premises to one Louis Roussau in consideration of $310, and said deed contained a covenant against incumbrances, except the said mortgage, and it was agreed verbally that Roussau was to pay said mortgage as a part of said consideration, and Roussau paid to the defendants $60, and on the mortgage $50, at the time of the sale, and has paid since the interest on the note to July 7, 1888, and $50 more on the principal in 1881. The balance due on the note and mortgage, at the time of the judgment, of principal and interest, was $237, for which judgment was rendered, as also for $40 solicitor's fees. The said Roussau was made defendant, but made no answer, and his equity of redemption, as well as that of Shepherd and wife, was foreclosed. The plaintiff asked judgment for any deficiency after the sale against the said Henry Shepherd, but did not ask for any such personal judgment against said Roussau. The defendant Shepherd answered, setting up the statute of limitations on the note as a bar to any such personal judgment against him for any such deficiency, and, this having appeared, no judgment for the same was rendered or ordered against him. These are the material facts. The error assigned is that the court held that the statute was a bar to any personal judgment against Shepherd, and refused to embrace in the judgment of foreclosure any such order. The learned counsel of the appellant contends that the payments of interest and part of the principal of the note within the period of limitation, by Roussau, the grantee, should be held to have been made by the said Shepherd, and that they removed the bar of the statute as to him because Roussau occupied the relation of a joint debtor with, or agent of, Shepherd. This is the only question in the case.

The authorities cited by the learned counsel are not in point with this case, but are claimed to be the same in principle, as showing by analogy that Roussau, as such grantee subject to the mortgage, and promising to pay the same, was a joint debtor or agent of Shepherd, or that his relation to him was in principle the same. There was no personal judgment asked against Roussau, and he did not answer; but the fact that he was such grantee of the Shepherds, and promised to pay the mortgage, and had made such payments on the mortgage, came into the case as matters of evidence, in order to show that the statute had not run as to Shepherd by reason of said payments. We do not think such payments by Roussau can have such effect. The following reasons appear to be sufficient for so holding: (1) Roussau was not a joint debtor, or jointly liable with Shepherd. It is true, he promised Shepherd to pay the note, and became liable to pay it; but the plaintiff, as mortgagee, was not a party to such promise, and has not yet accepted the benefit of it, and has not sought to hold him liable on it. It has never become a novation. The plaintiff is not bound to pursue his remedy against Roussau. (2) Roussau did not make the payments for the benefit of Shepherd, but for his own benefit, to protect his equity of redemption, or interest in the premises. Shepherd had no interest in the premises any longer to protect. It was immaterial to him whether Roussau paid the note or not, as far as the mortgage was concerned, for Roussau had bought the premises subject to the mortgage, and had promised to pay it, and he must pay it or lose his land. Shepherd had no interest in it, except to protect himself against any deficiency after the sale of the premises. Shepherd made the note, and is liable to pay it. He is the only party to whom the plaintiff looks for payment. He ignores Roussau as a party to the note, or as liable to pay it. Roussau made some payments on the mortgage, and the plaintiff received them, as he was bound to do, for Roussau stood then in the...