Baird v. McConkey

Cole, J. This is. an appeal from an order denying a motion for a judgment for deficiency in a foreclosure action. Tbe note and mortgage were given to a railroad corporation in payment for stock, and were duly assigned to tbe plaintiff. The complaint was in tbe usual form, asking for a judgment of foreclosure and sale of tbe mortgaged premises, and for a personal judgment against tbe maker of tbe note for any deficiency which might remain after applying tbe proceeds of tbe sale to tbe payment of tbe amount due. Tbe court below gave judgment for a foreclosure and sale; and, after giving sjDecific directions to tbe sheriff as to bow be should apply tbe proceeds of tbe sale, and as to making bis report of tbe sale, tbe judgment further provided as follows : “If tbe proceeds of such sale be insufficient to pay tbe amount so reported due to tbe plaintiff, with interest and costs as aforesaid, tbe said sheriff specify tbe amount of such deficiency in bis report of sale, and that the defendant James McOonlcey pay tbe same to tbe plaintiff,” &e. Now, as we understand this clause, it is a judgment for payment of tbe deficiency by tbe mortgagor in case tbe proceeds of tbe mortgaged premises were not sufficient to pay the debt and costs. We cannot see why it does not authorize tbe issuing of an execution for tbe deficiency reported due. It is clearly a judgment that tbe mortgagor pay tbe deficiency when it shall be ascertained by tbe report of sale, and, therefore all further judgment or order for tbe payment of such deficiency is unnecessary. And although tbe judgment does not state that tbe plaintiff haye execution for such deficiency, yet this is implied in law, as upon judgments in other cases. In New York, after tbe passage of tbe statute providing that in suits to foreclose a mortgage tbe court should have power to decree and direct tbe payment by tbe. mortgagor of any balance of 299 tbe mortgage debt, it was beld tbat a contingent decree for tbe payment of tbe deficiency could bo made before tbe sale. McCarthy v. Graham, 8 Paige, 480; Bank of Rochester v. Emerson, 10 id., 115. Here there was a judgment for tbe payment of tbe deficiency by tbe mortgagor upon tbe coming in of tbe sheriff’s report of sale, in case it should appear from tbat report tbat tlxe proceeds of tbe mortgaged property were insufficient to pay tbe debt and costs. And this practice derives support from tbe previous decisions of this court. Sauer v. Steinbauer, 14 Wis., 70; Gary v. Wheeler, id., 281; Faesi v. Goetz, 15 Wis., 231. Any further order or judgment for tbe payment of tbe deficiency being unnecessary, tbe court properly denied tbe motion. It is possible tbat tbe practice of taking a judgment for deficiency before tbe sale of tbe mortgaged premises may have been changed by chap. 243, Laws of 1862, so far as respects tbe class of cases coming within tbe purview of tbat law. Tbe third section of tbat act would seem to contemplate tbat in these cases judgment for any deficiency can only be taken at tbe time of tbe confirmation of tbe report of sale, or at some time thereafter. It is expressly provided, however, in tbe third section, tbat tbe provisions of tbat law shall not apply to or affect any action to foreclose a mortgage given by any person to a corporation for subscription to tbe capital stock of such corporation. As to tbat class of actions, tbe practice remains tbe same as before tbe passage of this act. Tbe defendants might have objected in this case by answer or demurrer, tbat several causes of action were improperly united ; but not having taken tbe objection in this way, they must be deemed to have waived it. And, as already remarked, tbe judgment for tbe payment of tbe deficiency by tbe mortgagor is ample and sufficient, and tbe order was properly denied upon tbat ground. By the Court. — Tbe order of tbe circuit court is affirmed.