Zægel v. Kuster

Lyon, J. 1. If the widow of Charles Zasgel, the mortgagor, effectually waived the provision made for her in her husband’s will, the interest of the mortgagor in the mortgaged premises descended to his children, subject only to the dower and homestead rights of such widow therein. It is an elementary rule that the owner of the equity of redemption in mortgaged premises is a necessary party to an action to foreclose the mortgage. If he is not made a party, he is not bound by the judgment in the action, and may redeem from the mortgage lien the same as though no action had been brought. The judgment in such a case operates only to assign the interest of the mortgagee to the purchaser-at the foreclosure sale. Hodson v. Treat, 7 Wis., 263, and cases cited in head notes (new ed. by Tilas & Bryant). Had the foreclosure action been commenced after the death of the mortgagor, against the widow and administrator alone, there can be no doubt that the right of redemption would have remained in the heirs of the mortgagor (if they owned the equity of redemption), notwithstanding the judgment in that action and the sale under it. We think the fact that [39] such action was commenced in the lifetime of the mortgagor does not change the principle. The statute then in force (R. S. 1858, ch. 135, sec. 1) provided for reviving the action on the death of the mortgagor, and continuing it against his successor in interest, who, of course, is the person in whom his interest in the mortgaged premises vested at his death. The statute was not changed by chapter 363 of 1860. The term “ proper representative,” employed therein, undoubtedly means such successor in interest. This is the more apparent from the fact that the substance oil both provisions is retained in the present revision. B. S., 752-3, sees. 2803, 2810. 2. Did the widow of the mortgagor effectually waive the provision made for her in her husband’s will? The complaint avers that the widow “refused to accept, and never accepted, the devise to her of said premises, and on the 24-th day of April, 1860, waived in writing all the provisions made for her in the said will of her husband, and on said day filed such waiver in the county court of said Sheboygan county.” Manifestly this was a clear, unequivocal disclaimer by the widow of any interest in the mortgaged premises under the will. It was filed in the court in which the estate was to be settled, and, we doubt not, was an effectual election under section 18, ch. 89, B. S. 1858, unless something remained to be done by her, under section 19, to make such election effectual. The latter section is as follows: “ When a widow shall be entitled to an election under either of the two last preceding sections, she shall be deemed to have elected to take such jointure, devise or other provision, unless, within one year after the death of her husband, she shall commence proceedings for the assignment or recovery of her dower.” Under a similar statute it was held in New York, in Hawley v. James, 5 Paige, 318, that certain acts on the part of the widow were equivalent to an entry, or the commencement of proceedings for the assignment of her dower, and constituted a valid election under the statute without actual entry or the commencement of such proceedings. The chancellor says: [40] “ The object of the legislature undoubtedly was to compel the widow to make her election to take her dower, instead of the jointure or other provision made in lieu thereof, within a limited period after the death of the husband, and by some open and notorious act which could not be misunderstood. And where she gives a written notice of such election to the person who is in the possession of the land in which she is entitled to dower, or who is in possession of the rents and profits thereof, claiming title to the land, and such person thereupon admits her right, and voluntarily pays her a part of the rents and profits of the premises as and for her dower therein, it must, in this court at least, be considered as an assignment of her dower, or an entry on the lands, within the intent and meaning of this statutory provision.” The present case is a stronger one in favor of the validity of the widow’s election. Her dower right in the mortgaged premises was subject to the mortgages. She was made a party defendant to the foreclosure action, and, before the expiration of a year after the probate of her husband’s will, judgment of foreclosure was rendered in the action. The judgment cut off her right to have dower assigned to her in the mortgaged premises, and she could thereafter assert no dower rights except in the surplus moneys arising on the sale, which might remain after satisfying the mortgage liens. ITence, it would have been idle for her to have commenced a proceeding for the assignment of dower when such proceeding would necessarily have been fruitless. "When she became a party to the foreclosure action, that action must be considered a proceeding for the assignment of her dower, within the intent and meaning of the statute. , "We must hold, therefore, that the widow made a valid election under the statute, and that the interest of the mortgagor in the mortgaged premises descended to his children, of whom the plaintiff is one, as intestate estate, subject to the dower and homestead rights of the widow. 3. But it is claimed that the statute of limitations has run [41] against the plaintiff’s right of action. For the purposes of this appeal it may he conceded that the case is ruled by section 18 and subd. 6 of section 17, ch. 138, R. S. 1858 (R. S., secs. 4221, 4233). These statutes, if applicable, gave the plaintiff a right to bring the action at any time within one year after he became of age. He became of age January 12, 1879. There is nothing on the face of the complaint showing that the action was commenced after that time. True, the complaint was verified at a later date, but it by no means follows therefrom that the action was commenced at a later date. It might have been commenced by the service of a summons, without a complaint, long before the complaint was prepared. ■ Indeed, counsel for plaintiff says in his brief that it was so commenced, but we have abstained from looking into the record to ascertain how the fact is. On this appeal we look into the complaint alone. 4. It was argued by the learned counsel for respondents that the purchaser at the foreclosure sale took the dower and homestead rights of the widow, and hence that, while she remains the widow of the mortgagor, such purchaser is entitled to the rents and profits of the mortgaged premises in the right of the widow, who, but for the foreclosure, would have been entitled thereto. If this position is correct, we do not perceive how it can affect the plaintiff’s right to redeem; for a reversioner may redeem. 2 Story’s Eq. Jur., § 1023. And we suppose he may do so pending the antecedent estate. It only goes to the rule of accounting, which we cannot settle on this appeal. "We conclude that the complaint states a cause of action, and that it fails to show that the action is barred by the statute of limitations. Hence the demurrer thereto should have been overruled. By the Court.— Order reversed, and cause remanded for further proceedings according to law.