Lane v. Duchac

• Decision Date: 12 March 1889
• Citation: Lane v. Duchac, 73 Wis. 646, 41 N.W. 962 (Wis. 1889)
• Parties: LANE v. DUCHAC ET AL.
• Court: Wisconsin Supreme Court

73 Wis. 646

41 N.W. 962

LANE

v.DUCHAC ET AL.

Supreme Court of Wisconsin.

March 12, 1889.

Appeal from circuit court, Langlade county; GEORGE H. MYERS, Judge.

The action is to foreclose a mortgage executed by the defendants Joseph Duchac and wife to Barbara M. Rhyner, on certain lands in Langlade county, to secure the payment of an unnegotiable promissory note for $300, and interest, given by the said Joseph Duchac to said Barbara. The note and mortgage were given for a loan of money, and bear date May 29, 1883. The mortgage purports to have been recorded May 31, 1883, in the office of the register of deeds of that county. The loan was made to Duchac by one Louis Schintz, of Appleton, a land and loan agent, through the firm of Deleglise & Hutchinson, which firm was engaged in a similar business at Antigo. Barbara M. Rhyner was the maiden name of the wife of one Ferdoline Zentner, a client of Schintz. The latter had loaned money for Zentner at different times, and for some of those loans had taken securities in the maiden name of Mrs. Zentner, with her consent and by the direction of her husband. Schintz was verbally authorized by both of them to execute receipts, etc., in her maiden name. Schintz was also accustomed to make other loans in the name of Barbara M. Rhyner, with her consent. The money loaned to Duchac did not belong to Zentner or his wife, and was not loaned as the money of any particular client of Schintz. The latter had in his hands when this loan was made more than $300 of the money of the plaintiff, who was also one of his clients, to be loaned for him, and from whom Schintz had a general authority to invest the money in his discretion. On June 5, 1883, which was almost immediately after he received the note and mortgage from D. & H., Schintz charged the amount of such note to the plaintiff, and at the same time assigned, or attempted to assign, the mortgage to the plaintiff by a written assignment executed by him in the name of said Barbara. He attached thereto his certificate, as a notary public, of the acknowledgment thereof by Barbara. He retained the papers in his hands until after the action was commenced, and until that time plaintiff was not informed of the transaction. On August 15, 1883, Duchac refunded the $300 to D. & H., who agreed to obtain the note and mortgage then in the hands of Schintz, and a release of the mortgage, but failed to do so. Duchac then mortgaged the same land to one Barnes, who knew of the mortgage in suit. Barnes afterwards foreclosed his mortgage, purchased in the land at the foreclosure sale, and conveyed the same by warranty deed to the defendant McCully. The latter had no actual notice, when he purchased the land, of the existence of the mortgage here in suit. The general index kept in the office of the register of deeds, pursuant to Rev. St. § 759, contains an entry of the mortgage, in compliance with the statute, except that a description of the land thereby mortgaged is omitted therefrom, and except also certain apparent irregularities in the order of the entries therein, which are referred to in the following opinion. The index first mentioned in section 760, and the grantee index provided for therein, were kept in such office, and contain entries of the mortgage, as required by the statute. The mortgage was recorded in full in the proper record book, at the place specified in the indexes, and the register indorsed upon it the time it was received for record, etc., pursuant to section 758, subd. 5. When the mortgage was thus recorded at length does not affirmatively appear. Defendant McCully, and two others who were made defendants as alleged subsequent incumbrancers, answered in the action. The other defendants defaulted. The answers need not be stated here, because no question arises on the pleadings. It is sufficient to say that they present the questions considered and determined in the opinion. The transactions out of which this action arose are somewhat numerous and involved, but it is believed the foregoing statement of facts contains all that is necessary to an intelligent understanding of the material points in the case. The circuit court held that there was no valid registry of the mortgage, and, because the defendant McCully had no actual notice of the mortgage when he purchased and paid for the land, that his rights were paramount to those of the plaintiff, under his mortgage. The court thereupon gave judgment dismissing the complaint upon the merits. The plaintiff appeals from the judgment.Kennedy & Schintz, ( Thos. Lynch, of counsel,) for appellant.

G. G. Sedgwick and Nash & Nash, for respondents.

LYON, J., ( after stating the facts as above.)

I. On all objections to the validity of the mortgage in suit, and the right of the plaintiff to maintain this action to foreclose it, the court held with the plaintiff, except upon the question of the validity of the registry thereof. In view of the undisputed fact that the defendant McCully took a conveyance of the mortgaged land adversely to the mortgage, without actual notice of its existence, the question of the validity of the registry goes to the right of the plaintiff to a judgment of foreclosure as against him, and is therefore a vital one in the case.

(1) One defect in the registry of the mortgage which it is claimed invalidates such registry is that the general index required by Rev. St. § 759, to be kept in the office of the register of deeds, and in which the mortgage is entered, does not contain a description of the mortgaged land, as required by the statute. But where (as in this case) the mortgage has been transcribed in the proper recordbook of the office, this court held in Oconto Co. v. Jerrard, 46 Wis. 317, and again at the present term, in Lumber Co. v. Ritchie, ante, 345, that the defect is cured, and the registry is complete from the time the instrument is so transcribed; and, further, that, in the absence of proof to the contrary, (and there is none in this case,) it will be presumed that the entry in the general index and the actual recording of the instrument were simultaneous acts. These decisions rule this case as to the defect under consideration, and lead to the conclusion that (unless there is some other defect fatal to the validity of the registry) the mortgage in suit was effectually recorded May 31, 1883. The ground upon which the above decisions are placed are sufficiently stated in the opinion therein.

(2) Section 759 requires the entry in the general index to be made immediately upon the receipt of the instrument for registry, and, because there is a column in the prescribed form of such index headed “Number of Instrument,” the requirement may fairly be implied that all instruments so received must be numbered as received in consecutive order. In the present case that portion of the general index wherein the mortgage in suit is entered contains intrinsic evidence that the first of the above requirements was not complied with, for the entries therein were not made in consecutive order, either of...