Hekla Fire Ins. Co. v. Morrison
| Decision Date | 21 November 1882 |
| Citation | 56 Wis. 133,14 N.W. 12 |
| Court | Wisconsin Supreme Court |
| Parties | HEKLA FIRE INS. CO. v. MORRISON AND OTHERS. |
OPINION TEXT STARTS HERE
Appeal from circuit court, Wood county.J. H. Carpenter, for appellant, the Hekla Fire Insurance Co.
Gardner & Gaynor and George L. Williams, for respondents, George W. Morrison and others.
This is an appeal from an order of the circuit court making school-district No. 3 of the town of Lincoln a defendant to the action. The action is brought to foreclose a mortgage given by Morrison and his wife to the the appellant to secure the payment of $600, borrowed money. The property mortgaged was conveyed to Morrison by one John Potvine, his father-in-law, in the life-time of said Potvine, who had deceased before the mortgage was given. The deed from Potvine recites that the consideration for making the deed is “the sum of one dollar, and certain provisions in accordance with the last will and testament of the said Potvine made herewith. The substance of the will is set out in the complaint, in which the same lands described in the deed to Morrison are devised to him, together with all the other property of the deceased Potvine, upon condition, in effect, that Morrison should work and take care of the homestead, (being the mortgaged premises,) and support, maintain, and care for said Potvine and his wife during their natural lives, and also support and care for said Potvine's minor children until they should become of age, or left said homestead of their own accord; and also that said Morrison should pay all debts owing by said Potvine, or which he might become liable to pay. It is further alleged that said deed to Morrison, and said paper writing, purporting to be a will, was executed and intended by said Potvine as one instrument, and were so accepted and received by the said Morrison. The petition of the school-district, asking to be made a party defendant in the action, sets out the foregoing matters, and further shows that the said Potvine, in his life-time, and before the conveyance of the land to said Morrison, and before the execution of the plaintiff's mortgage, became indebted to the said district in the sum of $340, which sum had been allowed to the district against the estate of the said Potvine, and remains wholly unpaid, and that there is no personal property of the said Potvine out of which said debt can be paid. Upon this petition, setting out, among other things, the facts above stated, the said school-district asks the court to be made a party defendant, “to the end that the claim of the petitioner against the estate of John Potvine, deceased, for the sum of $340, with interest from May 4, 1880, might be adjudged a lien on the part of said land not by law exempt as a homestead prior and superior to the plaintiff's mortgage.”
The counsel for the plaintiff and appellant insists that the learned circuit judge erred in granting the petition of the school-district, and ordering it to be made a party defendant, for two reasons: (1) That the petition does not show that the plaintiff was not a mortgagee in good faith, and without any knowledge of the rights of the school-district, if it in fact has any rights, as against Morrison, the grantee of Potvine; and (2) that it clearly shows that the right which the district claims to have, to collect the amount of its debt out of the mortgaged premises, is superior to and adverse to the plaintiff's mortgage. We do not feel called upon, on this appeal, to give any opinion as...
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