McGregor v. Pearson

Cassoday, J.

This is an action -to foreclose a mortgage of $400, bearing date December 6, 1867, purporting to have been executed by William and Mary J. Pearson to Duncan McGregor. The defendant Mary J. Pearson, separately answering, alleged that she did not sign or execute the mortgage, and that the premises therein were the homestead of the mortgagors when it purported to have been given, and had been ever since. Upon the trial of that issue by a jury, it was found that Mary J. Pearson executed the mortgage, and that the premises were a homestead; and it also appeared from the evidence that the mortgage had but one subscribing witness, and that, after the execution of the mortgage, William and Ma/ry J. Pearson conveyed the mortgaged premises to the defendant Mary Ann Pearson, by deed duly sealed, executed, witnessed and recorded, containing covenants that the *123 same were free and clear from all incumbrances whatever, except said mortgage; and thereupon judgment of foreclosure and sale was entered for the plaintiff, from which Mary J. Pearson brings this appeal. From this statement it is very evident that Mary J. Pearson, having part'ed with all interest in the premises, had necessarily ceased to have any interest in the controversy. Having no interest in the controversy in the court below, she can have no interest in this appeal. No judgment having been entered against her for deficiency or otherwise, there was nothing for her to appeal from. We therefore hold that an appeal will not lie in favor of one who had no interest in the controversy, and against whom no judgment has been entered, however irregular may be the judgment. Appeals are to be taken by a “ party aggrieved.” Section 3048, R. S. This is too obvious to need authority, but we cite McGinnis v. Wheeler, 26 Wis., 651 ; Hackley v. Hope, 4 Keyes, 123 ; Idley v. Bowen, 11 Wend., 227 ; Mills v. Hoag, 7 Paige, 18 ; Cuyler v. Moreland, 6 Paige, 273 ; Steele v. White, 2 Paige, 478 .

By the Court. — The appeal is dismissed.