First Trust Co. of St. Paul v. Ranch

• Decision Date: 10 January 1933
• Citation: 210 Wis. 278,246 N.W. 331
• Parties: FIRST TRUST CO. OF ST. PAUL v. CALUMET SILVER BLACK FOX RANCH.
• Court: Wisconsin Supreme Court

210 Wis. 278

246 N.W. 331

FIRST TRUST CO. OF ST. PAUL

v.CALUMET SILVER BLACK FOX RANCH.

Supreme Court of Wisconsin.

Jan. 10, 1933.

Appeal from a judgment of the Circuit Court for Calumet County; Fred Beglinger, Circuit Judge.

Action by the First Trust Company of St. Paul, trustee under the will of Charles A. Payne, deceased, against the Calumet Silver Black Fox Ranch.From the judgment for plaintiff, defendant appeals.--[By Editorial Staff.]

Affirmed.

Fox & Fox, of Chilton, for appellant.

Helmuth F. Arps, of Chilton, for respondent.

FRITZ, J.

Plaintiff brought this action at law to recover $4,000 and interest from defendant on its promise to pay a note and mortgage for that amount in consideration of a reduction in the rate of interest, and the extension of the time of payment specified in the note.The note and mortgage had been given by defendant's predecessor in title to certain Minnesota land, which was subject to the mortgage when purchased by defendant.Previously in defendant's contract for the purchase of the land, and again in the deed, which was subsequently delivered to defendant, it had also assumed and agreed to pay the indebtedness secured by that mortgage.No action to foreclose the mortgage had ever been commenced, and plaintiff was not seeking, and, of course, in this action pending in Wisconsin could not have, any such relief.Neither the original makers of the note nor the subsequent owners of the mortgaged premises were made parties to this action.Defendant contends that plaintiff cannot recover a money judgment in this action at law against the defendant alone, as but one of the five persons who may be personally liable for a deficiency judgment; and that no action at law against this defendant to recover a money judgment can be maintained until there has been a foreclosure of the mortgage in Minnesota, and a deficiency against the several persons liable therefor, after the application of the proceeds of a foreclosure sale in discharge of the mortgage indebtedness.Plaintiff recovered judgment in this action for the full amount due on the note for principal and interest, and defendant appealed.

[1][2] When defendant accepted the deed and assumed the payment of the mortgage indebtedness, it became primarily liable as the principal debtor.Stites v. Thompson, 98 Wis. 329, 73 N. W. 774, 775;Fanning v. Murphy, 126 Wis. 538, 105 N. W. 1056, 110 Am. St. Rep. 946, 5 Ann. Cas. 435;Lichtstern v. Forehand, 181 Wis. 216, 227, 194 N. W. 421;Hamill v. Kuchler, 203 Wis. 414, 421, 232 N. W. 877, 234 N. W. 879....