Teetshorn v. Hull

Lyon, J.

Section 3, of chap. 155 of the revised statutes, is as follows: “ In actions to recover any penalty or forfeiture *166 imposed by any statute, it shall be sufficient, without setting forth the special matter, to allege in the complaint that the defendant is indebted to the plaintiff in the amount of such penalty or forfeiture, according to the provisions of. the statute by which such penalty or forfeiture is imposed, specifying the section and chapter, as the case may require, or in some other similar terms referring to such statute. The complaint shall contain a demand for judgment for the amount of such penalty or forfeiture.”

Had the original complaint contained only the last paragraph, or had that paragraph been inserted therein as a separate ca-use of action, it would have been a good complaint under the above statute. But it is not so inserted. On the contrary, it is found in the same count with the facts specifically pleaded, and is stated as the legal conclusion therefrom. The language is, “.That thereby the defendant became and is indebted,” etc., thus referring to the facts previously stated as constituting the cause of action. It would seem therefore, that if those facts do not constitute a cause of action, the objection to the complaint on that ground was well taken, and should have been sustained notwithstanding the last paragraph thereof.

This brings us to inquire whether the facts specifically stated in the original complaint, constituted a cause of action ?

The principal objection taken to the sufficiency of the complaint is, that it failed to aver that the plaintiff is the assignee of the mortgagors. But it is averred therein that the mortgagors owned the premises when they executed the mortgage, and that afterwards the same were duly conveyed to the plaintiff, who thereupon became the owner thereof. The fair inference from this language is, that the mortgagors were the absolute owners of such premises until they executed the mortgage, and the legal presumption is, that they continued to be such owners, subject only to the mortgage, until the premises were conveyed to the plaintiff. This being the presumption, no conveyance to the plaintiff could constitute him the owner of the *167 mortgaged premises unless tRe same was executed by tRe mortgagors. TRe natural and unavoidable inference from tRe aver-ments of tRe original complaint is, tRerefore, tRat tRe mortgagors conveyed tRe mortgaged premises to tRe plaintiff. If tRe mortgagors were tRe absolute owners of tRe premises, subject only to tRe mortgage, wRen tRe same were conveyed to 'tRe plaintiff, tRere could Rave been no unpaid taxes or other incum-brance thereupon, or any outstanding trust estate therein Reid by another, under which, or by reason of the existence of which, the plaintiff could Rave obtained title from some source other than from the mortgagors.

It may be thought that this is a very liberal construction of the original complaint, in favor of the pleader. And so it is. But the law requires that it shall be liberally construed. “ In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with a view to substantial justice between the parties. R. S., ch. 125, sec. 21. Eurthermore, a much greater latitude of presumption may be indulged to sustain a complaint, where the objection that it does not state a cause of action, is taken for the first time at the trial, and after issue of fact has been taken upon it by answer, than where the same objection is taken by demurrer. This rule is well settled by the authorities cited by the counsel for the plaintiff. White v. Spencer, 14 N. Y., 247 ; Cady v. Allen, 22 Barb., S. C., 388; St. John v. Northrup, 23 id., 25.

In White v. Spencer, Denio, C. J., uses the following language : "We Rave decided, it is true, that it is the duty of the judge, on the trial, to reject evidence offered in support of immaterial issues. But an issue is not immaterial within the meaning of this rule, on account of the omission of some averment in a pleading which is essential to the full legal idea of the claim or defense which is attempted to be set up. If the court can plainly see, as in this case, what the matter really attempted to be pleaded is, the issue is not immaterial, though it may be defectively stated.” P. 251. These remarks are *168 strictly applicable to tbis case, for it is easily perceived wbat was attempted to be pleaded in tbe original complaint.

Several other objections are taken to tbe sufficiency of tbe complaint, in tbe brief of counsel for tbe defendant. -These have all been carefully examined, and our conclusion is, that none of them are well taken. These objections will be noticed briefly.

1. It is suggested that tbis action cannot be maintained until á court of equity has adjudged that tbe mortgage debt is paid. Tbe statute upon which tbe action is predicated contains no such qualification, but gives a right of action in all cases where tbe mortgage debt has been paid, and tbe bolder of tbe mortgage has neglected, for seven days after request, to discharge tbe same. We cannot interpolate tbe qualification for which counsel contend.

2. It is claimed that tbe complaint does not give tbe nature of tbe mortgage, and it is said that it may be in form an absolute deed, which has become an equitable mortgage by reason of tbe existence of a defeasance separate and distinct from tbe deed, in which case it is assumed that tbe statute does not apply to it. However that may be, tbe complaint shows that tbe condition of tbe mortgage in question, so far as tbe payment of tbe debt secured thereby is concerned, is inserted in tbe mortgage. Tbe language of tbe complaint is that Gage and wife “ executed to tbe defendant a certain mortgage, conditioned for tbe payment to said defendant of $1,400, as mentioned therein.'” Of course, tbis averment excludes tbe presumption that tbe mortgage is in form a deed absolute on its face. Whether or not tbe statute applies to such a mortgage, we do not decide.

3. It is said that tbe mortgaged premises might have been held adversely to tbe mortgagors when tbe mortgage was executed, in which case, under tbe law then in force, tbe mortgage would be void, and therefore not within tbe purview of tbe statute. It results from wbat has already been said, that tbe presumption is that tbe premises were not held adversely to *169 Gage. If they were, it is matter of defense. Besides, tbe objection comes with ill grace from the mortgagee, who has taken the mortgage, recorded it, and received the benefits of a performance of its conditions.

4. It is urged that the mortgage is void as such, because of a fatal defect in the description therein of the mortgaged premises. Two east and west lines are stated therein to run “ at nearly right angles ” to a certain section line “ as rim by F. J. iStairn.” The only criticism of the description is upon the effect of the above words in italics. It is well known that all section lines do not run' due east and west or due north and south, and the only effect which these words can have is to fix the boundary lines in question as due east and west lines, although the section line mentioned may deflect from a due north and south course. "We find no uncertainty in the description of the mortgaged premises.

o. It is objected that there is no allegation in the complaint that the defendant was the owner of the mortgage when he was called upon to discharge the same. It is alleged in the complaint and admitted by the answer that the mortgage was executed to him, and the legal presumption is that he continued to be the owner until the contrary be made to appear. There being no pretence that he ever parted with the mortgage, it sufficiently appears that he owned it when requested to discharge it.

6. The last objection, if understood correctly, is, that the complaint should have averred, not only that the defendant refused to execute a satisfaction of the mortgage, but that he refused to discharge it by an entry in the margin of the record thereof, as provided in sec. 41, ch. 86, R S. There is no force in the objection. The complaint states that at one time he was requested to execute and acknowledge a release, and at another time to execute a satisfaction of the mortgage, and that he refused to do so. If he had discharged it by entry in the record, that would have been matter of defense.

*170 We think therefore that the court did not err in overruling the defendant’s objections to the admission of testimony under the original complaint, and that it was correctly held that the same stated facts sufficient to constitute a cause of action. This disposes of the first exception.

It necessarily follows from the views above expressed, that the amendment to the complaint, permitted by the court, is of no importance. It did not change the character of the pleading or enlarge its scope, and was entirely unnecessary and inoperative. It is impossible that the defendant could have been prejudiced by its allowance. This disposes of the remaining exception.

It is quite unnecessary to decide whether the amendment should have been allowed had the original complaint failed to state a cause of action, because of its' failure to aver expressly that the plaintiff was the assignee, of the mortgagors, and we do not pass upon that question. I deem it proper, however, to say for myself, that I have no doubt the amendment in that case should have been allowed. If the case of K- v. H-, 20 Wis., 239 , holds a different rule, I do not hesitate to say that I think it was wrongly decided, and should be overruled in that particular.

By the Cbtmb — The judgment of the circuit court is affirmed.