Dunn v. Buckley

• Decision Date: 21 November 1882
• Citation: 56 Wis. 190,14 N.W. 67
• Court: Wisconsin Supreme Court
• Parties: DUNN v. BUCKLEY AND OTHERS.

56 Wis. 190

14 N.W. 67

DUNN

v.BUCKLEY AND OTHERS.

Supreme Court of Wisconsin.

Filed November 21, 1882.

Appeal from circuit court, Dane county.Sloan, Stevens & Morris, for appellant, Catherine Dunn.

H. W. Chynoweth, for respondents, Jane Buckley and others.

ORTON, J.

William Dunn, the husband of the plaintiff, was the owner of valuable omnibus property, and was engaged in running omnibuses in the city of Madison, and had borrowed at different times a considerable sum of money of William Buckley, one of the defendants, to be used in the business, and on the sixteenth day of November, 1872, he gave Buckley a bill of sale on all said omnibus property to secure the same, and perhaps future advances, and such bill of sale was duly filed as a mortgage. In a short time Buckley became dissatisfied with such security, and exacted of Dunn as additional and collateral security thereto a mortgage upon his house and lot, which was then and continues to be his homestead; and on the eighteenth day of January, 1873, Dunn, together with his wife, the said plaintiff, executed such mortgage nominally to Jane Buckley, the wife of said William, but for his benefit, and to secure the nominal sum of $1,000, but really and in fact the said advances already made and secured by the bill of sale. At the time this deed was given, such advances amounted to the sum of over $800. There is no provision in this mortgage for any future advances, and there was no proof that there was any contemporaneous agreement on the part of Dunn that the mortgage should secure any future advances, and there was no proof of any agreement at any time on the part of the plaintiff to that effect. Afterwards there was more money advanced by Buckley to Dunn, so that on final settlement between them, July 23, 1874, there was due from Dunn to Buckley the sum of $1,306.01. In May, 1874, Buckley consented to the sale of the omnibus property to Dunn for the sum of $2,000, and received as a part of the proceeds thereof the sum of $1,070.01, as appears by his account rendered.

These are the main and the only important facts to be considered or necessary for the determination of the question, whether the mortgage of the homestead was paid and satisfied, and ought to be so declared of record. Since the trial, William Dunn, the husband, has died, and his widow, as heir, brings this suit. The particular capacity in which she sues is, perhaps, immaterial, for her rights in the premises are determined by the relation she held when the mortgage was given and when it is alleged it was paid. There are certain obvious principles arising from and applicable to the peculiar relation of the parties, and the homestead rights of the plaintiff, which, in their application to these facts, would seem to remove all difficulty from the solution of this question: (1) The homestead right is favored in the law, and when it is made security for debt by the signature and consent of the wife, it is favored even more than a surety or the security given by a third person. To establish this proposition it is only necessary to consider the equitable rule established and recognized by courts, and by this court before the statute to that effect in the state was enacted, that when the homestead is embraced with other lands in a mortgage, such other lands shall be exhausted before resort is had to the homestead. James v. Dow, 18 Wis. 241;White v. Polley, 20 Wis. 503;Floyd v. Frank, 30 Wis. 306;Boyd v. Ellis, 11 Iowa, 97;Lay v. Gibbons, 14 Iowa, 377. Of course, this principle is broad enough to embrace all cases where the homestead is made security with other property, or security collateral to the security upon other property. Spear v. Evans, 51 Wis. 42; [S. C. 8 N. W. REP. 120.] This makes the analogy between the wife whose consent or signature is essential to the validity of such a security and a common surety very close, and indeed she is more highly favored and preferred. The creditor cannot exact...