Heller v. Shapiro

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: FOWLER
• Citation: 242 N.W. 174,208 Wis. 310
• Decision Date: 05 April 1932
• Parties: HELLER ET AL. v. SHAPIRO ET AL.

208 Wis. 310
242 N.W. 174

HELLER ET AL.
v.
SHAPIRO ET AL.^a1

Supreme Court of Wisconsin.

April 5, 1932.

Appeal from a judgment of the Circuit Court for Milwaukee County; August E. Braun, Circuit Judge.

Action for declaratory relief by William Heller and another against Sam Shapiro and others. From an adverse judgment, the named defendant appeals.--[By Editorial Staff.]

Reversed, with directions.

Action for declaratory relief commenced November 2, 1930; judgment entered October 1, 1931. Defendant Shapiro appeals.

[242 N.W. 174]

Morris Fromkin, of Milwaukee, for appellant.

Alexander, Burke & Clark, of Milwaukee (Arthur Snapper, of Milwaukee, of counsel), for respondents.

FOWLER, J.

The action is brought for declaratory relief under section 269.56, Stats. The relief is for declaration of the relative rights of all parties to the action, and particularly as to the plaintiff's rights respecting subrogation when they pay off a mortgage if they do pay it.

The two plaintiffs were conducting a business and wanted a loan. Rose Heller, wife of defendant Hugo Heller, a brother of plaintiffs, owned a parcel of real estate referred to as the Linnwood avenue property on which were mortgages and tax liens amounting to $6,712.91. Adelaide Heller, a sister of plaintiffs, owned another parcel, referred to as the Hackett property, against which was a mortgage of $3,500. To raise the money wanted the plaintiffs got Hugo and his wife and Adelaide to execute a joint mortgage for $18,000 on the two parcels to the defendant Integrity Savings Building & Loan Association, who advanced the money upon the mortgage. The mortgage requires payments of $200 a month, which payments the plaintiffs guaranteed and which they have been making to date. It was agreed between plaintiffs and the owners of the two properties when the joint mortgage was executed that $9,000 of the money received should stand as between them against each property. Out of the $9,000 so agreed as standing against the Linnwood avenue property, subsisting mortgage and tax liens aggregating $6,712.97 were paid, thus leaving $2,287.03 as the amount received by plaintiffs from the owners. It was agreed between the plaintiffs and the owners that when the plaintiffs had paid the amount received by them

[242 N.W. 175]

the owners would pay the remainder. However, the owners of the property are presently unable to make any of these payments and the plaintiffs will probably be compelled to make all of them under their guaranty. The plaintiffs have already made the payment they were to make under the agreement with the owners of the Linnwood avenue property. The defendant Shapiro loaned $6,000 to the owners of the Linnwood avenue property, taking as security a mortgage, subject to the building and loan company's mortgage. He foreclosed this mortgage, judgment was entered, the redemption period expired, and he was about to sell the property under his judgment. To prevent this sale the plaintiff brought this suit, asking that the sale be enjoined pending its prosecution, that the court declare them subrogated to the rights of the building and loan company under its mortgage, and that they be declared to have a lien superior to the lien of Shapiro's mortgage to the amount of the liens paid off by the money secured upon that mortgage. They brought in several mechanic's lien claimants whose liens arose after Shapiro commenced his foreclosure action. The case went to trial to the court without objection by any party to sufficiency of the complaint as basis for declaratory relief. Testimony was taken at considerable length and the court made findings and entered judgment. The judgment declared that “if, as and when” the plaintiffs pay the building and loan company's mortgage they will be subrogated to the rights of the holder of that mortgage and that in such event their rights will be superior to Shapiro's under his mortgage to the amount of the liens paid off by the proceeds of that mortgage. The rights of the mechanics lien claimants, none of whom appeared in the case, were declared subsequent to Shapiro's rights under his mortgage.

[1] While the point was nowhere raised by the appellant in the course of the...