Wylie v. Karner

Taylor, J. Upon this appeal the appellant alleges that his exceptions to the findings were well taken, and he also assigns for error that the judgment was erroneous in that it awarded to the plaintiff $50 as attorney’s fees in addition to the taxable costs, when the mortgage contained a covenant for the payment of only $25 for such fee. It is a sufficient answer to the first two exceptions, that the court does find that a certain sum was due and unpaid upon the contract for the sale of the land at the date of the finding, viz., the sum stated in such findings. It is very clear from the pleadings that the court did deduct a large sum from the amount which the contract called for, on account of the in-cumbrances on the mortgaged premises. There is no allegation in the complaint, or in the answer, that the defendant ever paid anything on the contract- except the sum of $100, paid at the time of the making the same; and whatever was deducted from the sum of $2,850, and interest for over five years at ten per cent., must have been deducted on account of the one-half of the incumbrances on the property at the time of the sale. The amount due on the contract after deducting the $100 paid, with interest at ten per cent., would be upwards of $4,560. The amount for which judgment was directed to be entered was the sum of $1,934.59, so that there must have [596] been deducted, on account of the incumbrances, $2,625, less the $125 deducted for the damage to the boiler, or the sum of $2,500. The defendant does not claim in his answer that he made any payment on the contract except the $100 and the payments he made by way of discharging- the incumbrances on the property, to about the amount of $2,000. which should be applied to the payment of the amount called for iri the contract. By the contract, half of the incumbrances on the place were to be deducted from the mortgage, and the balance was to be paid in three years from January 20, 1874, with interest at ten pe;- cent. If half the incumbrances amounted to the sum of $2,000 at the time the contract was made, there would still be due for the balance of principal and interest over $1,360 when judgment was entered; but the answer does not allege that half the incumbrances amounted to the sum of $2,000 at the time the contract was made, but that the defendant had paid about that sum on account of half of such incumbrances before the action was brought. If that allegation be true, it does not show that he is injured by the finding of the court. It is probable that a considerable amount of that sum was paid for interest which accrued after the contract was made, which would not be chargeable to plaintiff’s assignor, Stevens. The general finding upon this subject was clearly sufficient. Knox v. Johnston, 26 Wis., 41-43; Catlin v. Henton, 9 Wis., 476; Sanford v. McCreedy, 28 Wis., 103; Willer v. Bergenthal, 50 Wis., 474-479. If the appellant supposed the court had made any mistake as to the amount for which he should be credited on account of the incumbrances, he should have asked the court to find specially upon that question; and if not satisfied with such special finding on that subject, he should have excepted, and preserved the.evidence in a bill of exeep-• tions, so as to show the error of the court, if there was any. The third and fourth exceptions are not well taken, because the court has found in his favor upon the allegations of his [597] second answer, and assessed his damages at $125. The court has in fact found that there was a warranty and a breach, and has assessed the damages. This disposes of the 'defense, substantially. The answer upon this question is defective in not. being pleaded as a Counterclaim. See subd. 3, sec. 2656, B. S. The allegations are not sufficient to sustain a claim for damages on the ground of fraudulent representations, if it had been pleaded as a counterclaim, because it does not allege that the plaintiff knew that the representations were false when he made them. The court has, however, treated the answer as a counterclaim, and as sufficient to sustain a claim for a breach of warranty that the machinery was in good condition and free from defects. It seems to us that the appellant has nothing to complain of in this respect. The objection that the court has not disposed of the issue raised by the amended answer, cannot be sustained. The court has by fair inference found that at least some part of the mort- ■ gaged property was real estate, and directed judgment for sale as in case of a real estate mortgage; and there is nothing in the findings of fact which is inconsistent with that finding. Even if the evidence had shown that Stevens, the assignor of the plaintiff and the defendants’ vendor, was not the owner of lot 4, upon which the mill, etc., stood at'the time of the sale, still if he were in possession there would arise a presumption that he had a right to háve his mill on said land, as lessee or otherwise. Such right would pass by the sale to his vendee, and be covered by the mortgage back for the purchase money, and would constitute an interest in land so as to sustain the mortgage as a mortgage of an interest in real estate; and if the proofs showed that Stevens was in fact the owner of lot 4, or was in the possession, and there was no other evidence of ownership, then his vendee would, if he took possession under his contract,.be presumed to take the fee to the undivided half of the lot. Taking the description in the mortgage standing alone, we think it shows that it covered an interest in real es [598] tate. But if it were all personal property, it is difficult to see how the defendant is prejudiced by the judgment directing its sale as real estate. In fact, such direction is rather for his benefit, as it gives him a year and over to redeem, which he would not be entitled to had the plaintiff sold the property as personal property. The property being in the hands of the mortgagor, and of a peculiar nature, and the amount due on the mortgage depending upon the amount of incumbrances on the property mortgaged, it would perhaps be proper on the part of the mortgagor to come into a court of equity and aslc to have the amount due on his mortgage determined before sale under it, treating it as a chattel mortgage merely. But upon this point we do not deem it necessary to pass finally. We find nothing in the record previous to the entry of judgment which should reverse the judgment. The allowance of judgment for the sum of $50 attorney’s fees, in addition to taxable costs, was wholly unauthorized by the terms of the mortgage, or by any provision of law. The claim made by the learned attorney for the respondent, that the court may, in an action to foreclose a mortgage, allow a reasonable attorney’s fee in addition to-taxable costs, and in addition to the sum agreed to be paid in the mortgage as such fee, is not sustained by any authority in this court; and in the late case of Patrick Carroll's Will, 53 Wis., 228, it was expressly held that the statute regulating costs applied to all cases, both equitable and legal, and no costs could be recovered in any case except such as were designated by the statirte. That case was not intended to and does not decide that a party to a foreclosure suit may not recover a reasonable sum as attorney’s fees, in addition to the statutory costs, when the mortgagor has so covenanted in Ms mortgage; but it does cover all cases where no such covenant exists in the mortgage. The plaintiff may therefore recover the $25 agreed to be paid by the terms of the mortgage in addition to the statutory and taxable costs, but there is no authority for his recovery beyond that amount. Under [599] the rule established by this court in Page v. Town of Sumpter, 53 Wis., 652, and the cases there cited, we must reverse the judgment because it includes the sum of $25 for attorney's fees more than the law authorizes. By the Court.— The judgment of the circuit court is reversed, with costs, aud the cause remanded with directions to the circuit court to enter judgment in conformity to this opinion.