Roberts v. Wood

Lyon, J. I. The cases of Roberts v. McGrath, ante, p. 52, and Chipman v. Tucker, ante, p. 43, involved the same ques [67] tions presented by this appeal concerning the validity of the mortgages sought to' be foreclosed in this action; and but little need be added to what was said in those cases on the subject. Manifestly there was no delivery of the mortgages. This is a stronger case against delivery than that of Roberts v. McGrath; for Mr. Powers had nothing to do with their deposit in the safe of Mr. Scott, and delivery cannot possibly be predicated of any act of his. The evidence fails to prove that the mortgagors were guilty of such negligence in the premises as estops them, or those claiming under them, to deny that the mortgages were delivered. There was some evidence tending to show that the safe in which the securities were deposited was not always, perhaps not usually, kept closed and locked, and that they might easily have been purloined therefrom. But, inasmuch as they were not purloined, or taken from the safe clandestinely, but were obtained from the clerk of Mr. Scott by means of false and fraudulent statements and pretenses, the fact that the safe was habitually and carelessly left open (if such was the fact), is of no importance. Locks and bolts were unavailing against the means employed to obtain the securities. From the time of the deposit of the mortgages until they passed into the possession of the railroad company, the defendant and mortgagor, Joseph Wood, who had the control of them, was absent from Grand Rapids attending a session of the legislature, of which he was a member. After his return, he learned that the securities had been taken from the safe, and he seems to have made reasonable efforts to reclaim them. He demanded them of the railroad company, and commenced and prosecuted an action to compel a surrender and to obtain a cancellation of them, but without avail. As respects the alleged negligence of the mortgagors, there is nothing in this case to distinguish it in principle from that of Chipman v. Tucker, supra; and what is there said on that subject by Mr. Justice Cole, is applicable here. [68] We therefore affirm the judgment so far as it affects the defendant Granger, who alone denied the validity of the mortgages, and hold that the three mortgages which affect the lands in which he has an interest were properly adjudged to be surrendered and cancelled. It should be remarked in this connection, that it is quite immaterial, so far as Granger is concerned, that, in certain bankruptcy proceedings, the defendant Joseph Wood scheduled the indebtedness mentioned in these mortgages as valid claims against himself. This was done long after Granger took a conveyance of the mortgaged lands, and cannot affect his rights in the same. II. The defendant Norton claimed under a title which, if valid, was paramount to the mortgage interest, although subsequent thereto in time. It is well settled that the validity of his title calmot properly be litigated in this -action. Strobe v. Downer, 13 Wis., 10; Pelton v. Farmin, 18 id., 222, and cases cited. Indeed no attempt was made to do so on the trial, but the tax deed was received in evidence, under objection, for the sole purpose of showing that the defendant Norton, the grantee named therein, was in a position to contest the validity of the mortgages. But in his answer Norton does not attack their validity, but rests his defense thereto entirely on his paramount title. It was said by Mr. Justice PAINE, in Pelton v. Farmin, that “ if the party alleged to claim some interest subsequent and subject to the mortgage, claims none, he should disclaim, and the suit should be dismissed as to him.” There is no such formal disclaimer in the answer of Norton; but the assertion by him of a paramount title is equivalent thereto. For these reasons, and not because the mortgages never had a legal existence, the action was properly dismissed as to him. III. The record fails to show that the mortgagors contested the validity of the mortgages; it only shows that the defendant Joseph Wood answered his discharge fn bankruptcy. [69] Sucb discharge does not interfere with the plaintiffs right to have a foreclosure of his mortgages; it only prevents a judgment against Wood for any deficiency. Inasmuch as no defendant who has any interest in the land included in one of the mortgages, has attacked the validity of that mortgage, the plaintiff is entitled to a foreclosure thereof. The judgment must therefore be reversed as to the mortgagors, and the cause will be remanded for further proceedings in accordance with this opinion. By the Oourt. —It is so ordered.