Rice v. Kahn

Lyosí, J.

On the question whether the plaintiff can maintain this action of trover to recover the mortgaged property, in case he tendered sufficient to pay the mortgage debts which were valid as against him, or whether he is driven to his suit in equity to redeem, we have no difficulty or doubt. If the property in the hands of the plaintiff was only subject to the two mortgages recorded in Seymour; if the amount tendered bjr Mitchell in behalf of the plaintiff at the time the property was about to be taken under the mortgages, was sufficient to pay the debts secured thereby; and if such tender was kept good until the trial,— we hold that the tender divested the title of the mortgagees to the property just as effectually as a payment of the debts se *327 cured by the mortgages would have divested it; and if they took, carried away, and sold the same after such tender, against the remonstrance of the owner, they are guilty of a conversion thereof, and the plaintiff (the owner) may maintain this action of trover against them and recover the value of the property. ¥e do not regard the fact of any importance that the most of the mortgage debts were not due at the time the property was seized. If a mortgagee avails himself of a stipulation in the mortgage to that effect, and takes possession of the mortgaged property, or is about to do so, before- the debt secured bv the mortgage falls due, he thereby confers upon the mortgagor the right to pay the debt and keep his property.

We believe the views above expressed are sustained by the authorities cited on behalf of the plaintiff, and they certainly accord too well with justice and sound sense to" be overturned by mere technicality. Substantially the same views were held by this court in Harder v. Hosp, 69 Wis. 288 .

The controlling questions of fact in this case are, therefore, (1) Was a sufficient sum tendered on behalf of the plaintiff to redeem the property in controversy ? and if so, (2). Was the tender kept good ?

1. One of the mortgages under which the defendants claim, was filed in the town clerk’s office in the town of Osborn, February 23, 18S2, and an affidavit in attempted renewal thereof was filed in the same office, January IS, 1884. This was not a compliance with the statute in that behalf. E. S. sec. 2315. That statute requires such affidavit to be filed within thirty days next preceding the expiration of two years from the filing of the mortgage. This affidavit was not filed within that time, but was filed more than thirty days preceding the expiration of such two years. This failure renders the mortgage void as to purchasers in good faith of the mortgaged property. Hence, *328 if the plaintiff purchased the property in question without actual knowledge of the existence of such mortgage, he takes the property relieved from the lien thereof. Under the instructions of the court the jury necessarily found that he had no such actual knowledge, and the testimony sustains the verdict in that behalf. It was only necessary, therefore,, for the plaintiff to redeem from the two mortgages filed in the clerk’s office of Seymour, which were valid, subsisting liens upon the property in his hands.

The amount tendered was $250. The amount actually unpaid on those two mortgages, as between mortgagor and mortgagees, was a few dollars more than that sum. One of those mortgages, however, had been renewed by the filing of an affidavit under the statute, in which it was stated that the amount of the mortgagee’s interest in the property by virtue of the mortgage was $130. Taking that sum as the amount unpaid on the mortgage at that date, the amount unpaid on both mortgages is a little less than $250. So the question is whether the mortgagee is bound by. such statement in his affidavit of renewal — the plaintiff not knowing that more than $130 was then unpaid on the security. The principal.object of the statute is to give notice to all persons interested, at intervals of two years, of .the amount of the mortgage debt, and we think that the statements thus made may safely be relied upon by those who contemplate becoming interested in the mortgaged propertjn In the present case, the plaintiff, examined the files in the clerk’s office of Seymour, and did rely upon the statement contained in such affidavit, of renewal. Under these circumstances, we hold that the mortgagee is now estopped to claim that more than $130 was due at the time he filed such 'affidavit.

It follows that a sufficient sum was tendered to pay the mortgage debts.

2. Was the tender kept good? It was made by Mitchell, *329 the agent of the plaintiff, when the defendants were about to seize the property under the mortgages. The proof tends to show that he exhibited the money to one of the defendants, and to the sheriff who was acting as agent for the defendants in seizing, the property; that he offered the same to them, and stated the amount thereof at $250, and the purpose for which it was tendered; that he kept the same money in his possession, subject to the order of the mortgagees, until the trial, and during the trial paid the same money into court for their use. Beyond all question, the tender was kept good.

Some exceptions presenting other questions were taken to the rulings of the court on the trial, but in the view we have taken of the case they are not very material. ¥e have examined these rulings to some extent, however, and fail to detect any error.

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