Ogden v. Glidden

— 51 — By the Court, Dixorr, C. J. This case presents three questions, namely: 1. Whether the provisions of the act of the legislature entitled “ an act relating to foreclosure of mortgages, and the sale of land under such foreclosure,” approved May 15th, 1858, usually known as the mortgage stay law, now repealed, applied to an action for the foreclosure of a mortgage which was pending at the time of its passage. 2. Whether the judgment, after having reserved from the sale the lots which the defendants, Glidden and Lockwood, had conveyed to third parties, until the residue of the premises had been sold, and provided that those lots, when sold, should be sold in the inverse order of alienation, was erroneous, in not also reserving the lots of which Lockwood, by way of exchange, conveyed his interest to Glidden, October 30th, 1854. 3. Whether the judgment is erroneous, for the reason that the circuit judge did not give a decision in writing, stating separately the facts found, and the conclusions of law thereon. We think the first question a very plain one, that the act of May 15th, 1858, the provisions of which are familiar to every member of the profession, did not apply to or affect actions pending at the time of its passage. This action, which is for the foreclosure of a mortgage, was commenced February 24, 1858, and was pending at the time of the passage of the act. The first section of the act provided in substance, that in all actions and proceedings at law, thereafter commenced, for the foreclosure of mortgages, the defendant should have six months time after the service of process to answer, &c. The second section provided that whenever in such action or proceeding, judgment should be entered, or an order made by the court for the sale of the mortgaged premises, it should be for their sale upon six — 52 — months notice thereof as thereinafter provided; and that in all cases where, before the passage of that act, judgment of foreclosure and sale had been rendered, the mortgaged premises should be sold only upon six months notice of the time and place of sale. The other sections of the act have no particular bearing upon the question now before us. Adopting the cardinal rules, that the acts of the legislature are to be construed according to the intent of the legislature which passed them; that in ascertaining that intent we are first to look to the language in which they have spoken; and if that language is plain and unambiguous, interpretation is not allowable, we do not see how any doubt could have arisen upon this act. It is a question of grammatical, not of legal construction, and depends for its determination upon the principles of our language. With a view to the operation of the act, actions for the foreclosure of mortgages were divisible into three classes, viz: past actions, or those in which judgments had been rendered but not executed; actions pending; and actions to be thereafter commenced. It is evident by the act, that the legislature recognized and acted upon this classification, and by it provided for the first and third classes. The first section refers in direct terms to actions thereafter to be commenced, and provides for the time to answer. The second section provides for the manner of sale upon judgments in such actions, and in actions where judgments had been obtained, but not executed. The word “such” in the first line of the second section must be taken in its ordinary acceptation to mean, “ of that kind,” “ of the like kind,” and to refer to the class of actions specified in the first section. It may be that the failure to extend the provisions of the act to actions pending at the time of its passage was a sort of legislative casus omissus, and that had their attention been called to it, the .legislature would have supplied it; but where, as in this case, — 53 — the language of the legislature is clear and unequivocal, it is not for the courts to extend the operation of a statute to any subject not embraced in it. In respect to the second question, however, we are of opinion that the judgment is erroneous. The defendants Glidden and Lockwood answer jointly, and it appears from their answer that they were tenants in common of the mortgaged premises, by title derived at the same time, by the same deed; that they purchased the premises subject to the mortgage, and are equitably bound for its payment; that after their purchase, they laid them out into a village plat, known as Glidden & Lockwood’s addition to Milwaukee, and at different times, sold and conveyed by warranty deed various lots to third parties, which are now owned by the other defendants in the action; and that on the 30th of October, 1854, after the sale and conveyance of the lots to third persons, they made an exchange and conveyance between themselves in such manner that Glidden became the sole owner of block 20, and lots 1, 9 and 10, and the southerly half of lot 8, in block 6; and Lockwood the sole owner of block 2. It appears from the bill of exceptions, that these statements of the answer were on the trial admitted to be true. Glidden and Lockwood still remain tenants in common of the residue of the mortgaged premises. They further allege in their answer that, at the time the installment of $7,600, for which the judgment in this action was rendered, became due, Glidden placed in the hands of Lockwood $5,000 in money, that being more than sufficient to pay the one-half of the mortgage debt, which equitably belonged to him to discharge, with instructions to Lockwood to apply the same in payment of the bond and mortgage, but that Lockwood employed the same for purposes of his own, and therefore become bound and expressly promised Glidden to pay off the whole mortgage, and to keep his, Glidden’s, — 54 — share of the premises free from it. They ask in the answer that Lockwood’s share of the premises shall be first exhausted before Glid den’s share is resorted to for the purpose of paying the mortgage debt. These last allegations of the answer were neither admitted nor proved at the trial. The judgment provides that the whole of the mortgaged premises, except the lots sold to third parties, shall be first exhausted, and that those lots shall be sold in the inverse order of the time of the transfers. On the part of the plaintiff it is contended that the prayer of the answer was properly denied, because there was no proof to sustain it, and because it shows no equities on the part of Glidden which the court is bound to notice; that it is a statement of a private transaction or dealing between Glidden and Lockwood, which cannot be set up to influence the mode of sale, and which the court is not bound to look into or settle in this case. We think, however, that a moment’s consideration of the object of such an answer, and of the reasons for allowing it to be put in, will show that these objections are imtenable. It is a well settled rule that courts of equity, in cases where there is no dispute, will look into and settle equities as between different defendants. We say in cases where there is no dispute, because we do not wish to be understood as saying, that in cases where the equities or rights are disputed or contested as between different defendants, that the court will, at the risk of putting the plaintiff to great expense or delay, stop to determine them; for, on the contrary, there is high authority for saying that it will not do so. But in cases free from dispute or doubt, it is always done. Out of this general rule has arisen the rule in relation to marshalling securities in cases like the present, which is in substanee, that where there is a lien upon different parcels of land for the payment of the same debt, some of which still belong to the person owing and equitably bound to pay the debt; and others are owned by — 55 — third persons; that as between him and them, his part of the land shall be first chargeable with the debt. It is for the purpose of enabling the courts to carry out these principles, and not in any way to defeat or impair the rights of the plaintiff, that answers like the present are allowed to be made. They are not matters upon which the plaintiff can take issue. And when the defendants, for and against whom the equities are sought to be raised, admit or join in asserting the facts, proof becomes unnecessary. It is a matter of no concern to the plaintiff whether the statements are true or false. He is pursuing a remedy for the collection of his debt to which alone he is entitled, and it is his right, if need be, to have the whole of the mortgaged premises sold for that purpose, but the order as to time, in which the several parcels or tracts are sold, is to him quite immaterial. We think that, admitting the payment of the $5,000, by Glidden to Lockwood, qs stated in their answer, Glidden has an equity which entitles him to have the parcels of the mortgaged premises, of which he is the sole owner, reserved until Lockwood’s interest is exhausted. These remarks of course apply only to those portions of the premises of which Glidden is sole owner, and not to that portion of which he and Lockwood are still tenants in common; for, as to that portion, we believe it is a well settled principle, that a court will not, under such circumstances, decree a sale of undivided moities separately. Frost vs. Frost, 3 Sandford Ch. R., 188. Upon the third question, we suppose that since the decision of this court in the case of Sayre vs. Langton, 7 Wis. Rep., 214, it must be taken to be the settled doctrine, that in all cases where a question of fact is tried by the court, its decision must be given in writing in accordance with § 19 of chapter 132 of the Revised Statutes, and that if it be not so given, and an exception is taken for that reason, the judgment will be reversed. This is the settled rule in' Missouri under — 56 — a statute precisely like ours. Farrur vs. Lyon, 19 Mo. R., 122 ; Pierce vs. Barnes, 22 id., 577; Pierce vs. Roberts, id., 583. Although in cases in equity, where we review the facts, as well as the law, the reason for requiring such written decision does not seem to exist, yet, inasmuch as this court in the case above referred to, clearly intimated that such would be the rule, we do not feel at liberty to depart from it. It is one of those questions which it is not so important how it is settled, as that it should be settled so that the profession may understand it. It is clear in the present case, that the several matters set up in the answers for the purpose of showing the equitable rights of the defendants as between themselves, do not form an issue. Upon examining the pleadings we find it alleged in the complaint, that the defendants had failed to comply with the condition of the bond and rportgage, by omitting to pay the sum of $1,000 and the interest on the whole debt which became due on the 1st day of July, 1852, and that that installment, together with the interest, still remained due and unpaid. This allegation of the complaint was directly traversed by the answer of Glidden and Lockwood, and the payment of the same averred. So far at least there was an issue joined upon material facts, of which a strict compliance with the statute would require a finding in writing. The attention of the attorney might however well have been diverted from this issue, for the reason, as appears from the bill of exceptions, the point was not contested, the plaintiff having admitted that the averments of the answer were true, and that the $1,000 and interest had in fact been paid. The judgment of the court below must be reversed, and the cause remanded for further proceedings in accordance with this opinion.