McLean v. McLean

• Decision Date: 23 June 1924
• Parties: MCLEAN v. MCLEAN ET AL.
• Court: Wisconsin Supreme Court

184 Wis. 495

199 N.W. 459

MCLEAN

v.MCLEAN ET AL.^a1

Supreme Court of Wisconsin.

June 23, 1924.

Appeal from Circuit Court, Rock County; George Grimm, Judge.

Action by Anna E. McLean against Ervin C. McLean and others. Judgment for plaintiff, and defendants McLean and others appeal. Reversed and remanded with directions.Jeffris, Mouat, Oestreich, Avery & Wood, of Janesville, for appellants.

Whitehead & Matheson, of Janesville (Robert C. Bulkley, of Whitewater, of counsel), for respondent.

DOERFLER, J.

The court found, among other things, that on the 5th day of November, 1879, one Mary E. McLean and John McLean, her husband, executed and delivered to one Cook a promissory note for the sum of $800, payable in three years after date, with interest thereon at the rate of 8 per cent. per annum, payable annually; that to secure said note, the makers executed a mortgage upon certain real estate belonging to Mary E. McLean, which mortgage was duly recorded; that the interest on said note was regularly paid until November 16, 1891; that the parties then agreed to reduce the interest to 7 per cent., and that the interest thereafter was regularly paid until November 5, 1903; that thereafter one year's interest was paid, on November 5, 1909, and that the only interest paid thereafter was on March 1, 1918, the amount being $10; that all of the payments of interest aforesaid were duly indorsed on the note; that Mary E. McLean died intestate on May 6, 1902, leaving as her only heirs at law Addie E. Flansburg, Eva L. Bortle, Louisa L. Rice, and Ervin C. McLean, and her husband, John McLean; that Louisa L. Rice died before the commencement of this action, leaving as her heirs at law her children, Florentine Rice and Claude Rice; that the plaintiff and John McLean were married on October 10, 1902; that one Mary E. Fielding, who became the owner of the note and mortgage in question upon the death of the mortgagee Cook, on the 23d day of November, 1903, assigned and transferred the same to the plaintiff; that upon the death of the said Mary E. McLean, John McLean became possessed of said real estate as tenant by the curtesy, and continued in such possession until September 8, 1922, when he died; that the total amount of the principal and interest due and unpaid is the sum of $1,841.24; that the payments of interest made as above stated take said cause of action out of the operation of the statutes of limitations; and that no part of said real estate consists of a homestead. As conclusions of law, the court found that the plaintiff is entitled to judgment of foreclosure. A judgment of foreclosure was thereupon entered, from which judgments appellants have taken this appeal.

The appellants in the court below pleaded the statutes of limitations, and the only question involved on this appeal is whether or not the note and mortgage are barred by such statutes. Under the provisions of section 4220 of the Statutes, an action upon a sealed instrument where the cause of action accrues within this state, with certain exceptions not applicable here, must be commenced within twenty years. Under the provisions of section 4222, Statutes, an action on a note must be commenced within a period of six years after the cause of action has accrued. Section 4248, Statutes, provides as follows:

“If there are two or more joint contractors or joint executors or administrators of any contract no one of them shall lose the benefit of the provisions of this chapter, so as to be chargeable, by reason only of any payment made by any other or others of them.”

[1] The note in question, while executed for the benefit of the separate estate of Mary E. McLean, the owner of the mortgaged property, was a joint note as to the payee or any subsequent owners. John McLean also joined in the mortgage, which would subject any future interest which he might obtain in the real estate during the life of the mortgage to the lien thereof. Mary E. McLean, having died on May 6, 1902, paid the last interest upon the note in November, 1901. The action to foreclose was begun on February 5, 1923. From the time of the death of Mary E. McLean up to the time of the commencement of the action, whatever interest was paid upon the note was paid by John McLean, and there is nothing in the record to show that any of the payments made during this time were made with the knowledge, consent or acquiescence of the appellants herein. John McLean, from the time of his wife's death in 1902 up to September 8, 1922, had possession of the mortgaged real estate as tenant by the curtesy. As a joint maker of the note in question, John McLean became obligated to pay both the principal and the interest on the note. As tenant by the curtesy after the death of his wife, he having possession of the premises and enjoying the income, rents and profits thereof, was also obliged to pay the interest on the mortgage. After 1903, the first payment of interest was in 1909. Thereafter a period of nine years elapsed before any other payment was made on interest, and on such occasion a small payment of $10 was made, evidently for the express purpose of keeping the mortgage alive.

While the note became due in 1883, and while the interest thereon was regularly paid during the lifetime of Mary E. McLean, the plaintiff could have at any time foreclosed the note and mortgage, for default in the payment of the principal. No agreement for extending the time of payment of the note and mortgage had ever been entered into, so that at the time of the death of Mary E. McLean her heirs at law became the owners in fee of her property, subject to her husband's right by the curtesy, and subject to the payment of the mortgage, in which default had been made in the payment of the principal, and which was subject to immediate foreclosure. The mortgage constituted a lien not only upon the interests of the heirs at law, the owners of the fee, but also upon the life estate of the husband. Under such circumstances, John McLean, as life tenant, took possession of the property, and at such time was liable, as a joint maker of the note, for the payment of the principal and interest, but was also under an obligation to pay the interest upon the mortgage, as life tenant.

[2] Up to the time of the death of Mary E. McLean, as a joint maker of the note she was liable for the principal and the interest, and her property remained as security by virtue of the mortgage. Upon her death, the owner of the mortgage had the right to pursue one of three remedies as against her: First, she could file her claim...