Magoon v. Callahan

Cole, J. It is practically conceded that the circuit court properly set aside the judgment on the ground that the defendant’s default was excused. The only question is, whether the terms imposed as a condition to allowing the defendant to come in and answer were just and reasonable. After an examination of the case, we have concluded that there should be. some modification of the order imposing terms. The defendant claims that he paid $50 in full for interest on the sum to become due on the contract, the day the papers were executed. We think he should not be required to deposit that sum with the clerk, as by the order he must do. Whether that sum was or was not paid as alleged or claimed, will be a proper question for determination on the evidence. It is certainly a controverted point'in the case, and may well await the final hearing. It is true, the order provides that this $50 is not to be paid by the clerk to the plaintiff until the fur [145] ther order of tbe court; and it is suggested on tbe part of tbe plaintiff that tbis relieves tbe condition from all objection, and fully preserves the rights of tbe defendant. But if that sum has once been paid on tbe contract, it seems to us unjust to require tbe defendant to again raise tbe amount to be deposited with tbe clerk to await tbe result of tbe litigation. Tbe provision in tbe order requiring tbe defendant to pay tbe amount which be admits to be justly due and payable, is correct, except that we are inclined to think tbe court should allow him until July 1, 1876, to make tbe payment. Our reason for giving tbis time is tbis: If tbe defendant’s version of tbe transaction is correct, tbe deed and contract executed on tbe 6th day of January, 1871, probably constitute a mortgage to secure tbe payment of a sum loaned. On tbe foreclosure of a mortgage there is a sale of tbe property, and a year given to redeem. The defendant should have about that time to make payment, and tbis be secures by tbis modification of tbe order. Counsel, however, insist that as tbe defendant satisfactorily excused bis default and showed that be bad a defense on tbe merits, be should have been allowed to answer without any conditions. "We cannot assent to tbis proposition. Tbe defense set up in tbe answer was, that tbe property conveyed was tbe defendant’s homestead; that be was a married man; and that tbe deed was void because not executed by bis wife. Tbis defense, if sustained, affects tbe validity of tbe instruments as securities. And tbe defendant asks a court of equity to exercise its discretion and enable him to make that defense. And tbe court merely requires him to pay tbe money confessedly due and payable as a condition to coming in to avoid and set aside the securities. It is quite analogous to permitting a party, after default, to come in and make tbe defense of usury, with tbis difference: here tbe plaintiff is guilty of no wrong; be may not even have been wanting in proper diligence in taking tbe conveyance without tbe signature of tbe [146] wife; for it does not appear that tbe defendant’s wife lived witb bim — indeed, tbe inference from tbe answer is that sbe does not, — and tbe plaintiff consequently may not have known that be was a married man; while in tbe case of usury tbe lender is guilty of a violation of law, Still, as a condition of aiding a party against usury, this court has held that it was just and reasonable to require tbe borrower to pay tbe principal sum due and interest. Dole v. Northrop, 19 Wis., 249; Jones v. Walker, 22 id., 220; and Weber v. Zeimet, 27 id., 685. According to our view, it was a most reasonable exercise of discretion on tbe part of tbe court to require tbe defendant to pay tbe amount confessedly due and owing as a condition to allowing bim to come in witb his proposed defense. Nor do we think this view is in conflict witb tbe decision in Hanson v. Michelson, 19 Wis., 499. Tbe leading facts of tbe two cases are so unlike that they cannot be brought within tbe application of tbe same principle. Have tbe defendant admits that be justly owes the plaintiff $500, and tbe interest thereon from January 6,-1872; and every principle of law and all rules of honest dealing require bim to pay bis debt. By the Oowrt. — Tbe order of tbe circuit court is reversed, and tbe cause is remanded for a modification of tbe terms imposed, as indicated in this opinion.