Dodge v. Silverthorn

By the Court, Cole, J. We have no doubt that a person in possession of land under a school land certificate, or owning such a certificate, has an interest or estate in the land which may be mortgaged. These certificates are analogous to an ordinary land contract between individuals for the sale and conveyance of real estate. Smith vs. Mariner, 5 Wis., 551; Smith vs. Clark et al., 7 id., 551; Whitney vs. the State Bank, id., 625. And although the fee of the land remains in the state, until the amount of the certificate is paid and the patent issues, still the purchaser takes an interest in real estate which may be sold, conveyed and mortgaged. See Bull vs. Sykes et al., 7 Wis. R., 449. Of course the mortgage would be subject to the amount due the state. Neither could such a mortgage interfere with the right of the state to sell the land for non-payment of interest [648] ox taxes. But tbe mortgagee could easily protect liimself against forfeiture by paying tbe amount due tbe state. "We, therefore, consider it very clear, tbat Almira Vanhoosen bad a mortgageable interest in tbe land mentioned in tbe complaint, and embraced in school land certificate No. 138. This being so, tbe certificate was sold and assigned by her to Powers, subject to tbe mortgage. Tbe appellant Silver-thorn, acquiring tbe interest of Powers in tbe certificate, took it subject to tbe same mortgage, and stood in bis shoes. He cannot be said to be a purchaser without notice. Tbe mortgage was recorded in the proper county, and be was bound to take notice of it. It is objected tbat tbe registry laws do not apply to such a mortgage; but why they do not, we fail to understand. Tbe statute provides tbat the certificates themselves may be acknowledged and recorded like deeds of conveyance, and tbat an assignment of them in writing may be acknowledged and recorded in tbe same manner. Chap. 28, sec. 53, E. S., 1858. And we are unable to perceive any reason or jninciple, why a mortgage given by tbe owner of a school land certificate should not be recorded like other mortgages, and be governed by tbe same rules in respect to notice. In tbe present case, tbe appellant states, in bis answer tbat be has paid tbe state tbe amount due upon tbe certificate, and obtained a patent for tbe land. If tbat be so, then tbe amount paid tbe state ought, in equity, to be considered tbe first lien upon tbe land, and tbe first to be paid out of tbe proceeds, if it comes to a sale. Tbe mortgage being subject to tbe amount due tbe state on tbe certificate, tbe condition of tbe parties has not been essentially changed by Silverthorn paying up this amount and taking tbe patent. Tbe respondent will only have to pay tbe appellant what be otherwise would have paid tbe state, in order to make bis mortgage tbe first incumbrance. As already observed, tbe amount paid tbe state for tbe land will first be satisfied out of tbe proceeds of tbe mortgaged property, and tbe remainder applied in discharge of tbe mortgage until tbat is paid. We allude to tbe manner in which tbe proceeds of tbe property should be applied, for tbe purpose of making our views in regard to tbe rights and equities of tbe [649] parties more intelligible. We have no doubt but the mortgage is valid, and the answer of the appellant discloses reason why it should not be foreclosed in conformity to the prayer of the complaint. It is alleged in the answer that Almira Vanhoosen, the maker of the notes and mortgage sought to be foreclosed, was, at the time she executed the same, a married woman, living and cohabiting with her husband, and, therefore, it is insisted that the notes and mortgage are void. This defense, if good, would be a little ungracious in view of some matters stated in the complaint, viz., that Mrs. Vanhoosen sold and assigned the certificate to Powers, with the express agreement that Powers would pay the notes and mortgages, and that the amount of these notes was considered a part of the purchase money, to be so applied and discharged by Powers. Mrs. Vanhoosen does not seek to avoid the foreclosure of the mortgage. Furthermore, we have held that a married woman may charge her separate property with the payment of an indebtedness, and that a court of equity can enforce such a contract by a proceeding in rem against the property charged. Heath vs. Van Cott, 9 Wis., 516. No personal remedy is sought against Mrs. Vanhoosen, but merely that the land be sold to pay the debt she has charged upon it. We can see no satisfactory reason why this should not be done. We therefore think the demurrer,to the answer well taken.