Scheibe v. Kennedy

• Decision Date: 01 December 1885
• Citation: 64 Wis. 564,25 N.W. 646
• Parties: SCHEIBE v. KENNEDY, IMPLEADED, ETC.
• Court: Wisconsin Supreme Court

64 Wis. 564

25 N.W. 646

SCHEIBE

v.KENNEDY, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed December 1, 1885.

Appeal from circuit court, Waupaca county.F. M. Guernsey and J. C. Gregory, for respondent, Christian Scheibe.

P. V. Lawson, for appellant, Sarah Kennedy, impleaded, etc.

TAYLOR, J.

This is an appeal from an order overruling a demurrer by the defendant to the complaint in the action. The action is brought to foreclose a mortgage upon real estate. The mortgage, the foreclosure of which is sought in this action, was given to secure the payment of a promissory note for $600, bearing date on the sixth day of December, 1883, and payable on or before three years after the date thereof, with interest from date until paid at the rate of 7 per cent. per annum, payable annually. The condition of the mortgage, as set out in the complaint, is as follows: “That if the said mortgagors, their heirs, executors, administrators, or assigns, should well and truly pay, or cause to be paid, to the said mortgagee, his heirs, executors, or assigns, the said sum of six hundred dollars according to the terms of said note, to secure which said mortgage was given as aforesaid, then the said note and the said mortgage should cease and be null and void.” The complaint set out two other conditions alleged to be contained in the mortgage, viz.: (1) It was expressly agreed that the mortgagors should not sell, convey, or dispose of said premises until the mortgage was fully paid and satisfied, and that in case they did so sell, etc., then said note should become due even at any time before maturity, and said mortgage may be foreclosed as though it were due; (2) and express agreement on the part of the mortgagors to keep the buildings on the mortgaged premises insured for the benefit of the mortgagee. The plaintiff does not, however, upon this appeal claim any benefit of this last condition, as he freely admits there is no sufficient breach of that condition set out in the complaint. The complaint sets out a breach of the conditions, as follows: “That the mortgagors have failed to comply with the terms of said note and the condition of said mortgage by failing and neglecting to pay the sum of forty-two dollars, interest money for one year, which became due and payable on the sixth of December, 1884; * * * and by failing and neglecting to comply with the terms and conditions of said mortgage in selling, conveying, and disposing of said mortgaged premises without the consent of this plaintiff.” The plaintiff demands judgment for the whole amount due the plaintiff on said note and mortgage, namely, for the sum of $600, with interest on said sum from the sixth day of December, 1883, with costs and disbursementsand a reasonable and customary sum of money as solicitor's fee, as stipulated in the mortgage. The above statement of the allegations of the complaint is sufficient for understanding the objection made to the same by appellant on the hearing in this court.

The learned counsel for the appellant insists (1) that, as the complaint demands a judgment of foreclosure and a sale of the mortgaged premises to pay the whole amount of the note and interest, with costs, etc., it should be held bad upon a general demurrer, if the facts set out in the complaint do not entitle the plaintiff to such judgment; (2) that the facts alleged do not make out a case for the judgment demanded; (3) that the plaintiff cannot maintain an action to foreclose this mortgage because of the non-payment of the interest due on December 6, 1884. It was not claimed with much confidence on the part of the counsel for the respondent, upon the argument in this court, that the facts set out in the complaint were sufficient to entitle the plaintiff to a judgment of foreclosure for the whole amount of the note and interest to secure the payment of which the mortgage was given, and for the purposes of the decision of this appeal we shall assume that, upon the facts alleged, it is not made to appear that the whole amount of the note and interest was due according to the terms of the mortgage when the action was commenced. The complaint, however, does allege that one year's interest on the note was due and unpaid when the action was commenced, and sets up that fact as a breach of the condition of the mortgage in the following language: “That said defendants [the mortgagors] have failed to comply with the terms of said note and the conditions of said mortgage by failing and neglecting to pay the sum of forty-two dollars, interest money for one year, which became due and payable on the sixth day of December, 1884.” This is an express allegation of a breach of one of the conditions of the mortgage by a failure to pay a part of the debt secured to be paid, and is sufficient in itself to authorize the commencement of an action to foreclose the mortgage, in absence of some agreement in the mortgage which prohibits such foreclosure for that breach. The rule is that the foreclosure of a mortgage may be commenced when any condition of the mortgage is broken by the non-payment of any part of the debt secured thereby, when the same becomes due and remains unpaid. Coote, Mortg. 1018; Holles v. Wyse, 2 Vern. 290; Gladwyn v. Hitchman, Id. 135; Edwards v. Martin, 35 Law J. Ch. 186; 5 Bac. Abr. 130, 131; Bank v. Chester, 11 Pa. St. 290; Adams v. Essex, 1 Bibb, 149;Richards v. Holmes, 18 How. (U. S.) 143-146;Ames v. Ames, 5 Wis. 169;Manning v. McClurg, 14 Wis. 350. The statute of this state clearly contemplates the right of the mortgagee to foreclose his mortgage when any part of the debt secured becomes due and remains unpaid, and fully protects the rights of the mortgagor in such case by allowing him to bring into court the amount then due, with costs, and have the action dismissed, and after judgment all proceedings on the same may be stayed by bringing into court the amount due, with costs. Rev. St. 1878, §§ 3157, 3158. The only case cited by the learned counsel holding a contrary rule is Brodribb v. Tibbets, 58 Cal. 6. This case seems to have been decided upon the theory that, in order to allow the foreclosure of a mortgage for the non-payment of interest, there must be an express stipulation in the mortgage to that effect. No authorities are cited to sustain the ruling of the court, and we think it is...