Green v. Pierce

Lyon, J. On behalf of the appellants, it is maintained that the property in controversy was the homestead of the defendant Pierce when he executed to the plaintiff the instruments of November 9, 1877, and October 16, 1878, and that the same are void because they have not the signature of his wife thereto. We cannot adopt this view. The lease under which Pierce occupied the property contains a stipulation or restriction in substance and effect that the leased premises should be used only as a hotel and eating-house. The use of any portion of it by the lessee as a residence is thus prohibited by the lease. True, it has often been held that the owner may live in his hotel or store-building and hold the same as a homestead, although the building is also used for business purposes; but where the very tenure by which the property is held (as in this case) excludes the right of the occupant to use it as a residence, no homestead right therein can accrue to such occupant. It is quite immaterial that Pierce occupied the hotel, with his wife and family, as a residence. That was well enough so long as his lessor did not insist upon a strict compliance with the terms of the lease in that behalf. B ut such occupancy,— even by the tacit acquiescence of the lessor,— did not, and could not, enlarge his rights under his lease, or modify or remove the limitations and restrictions therein contained. Besides, it is not certain that the question of homestead is in the case. It may well be claimed that this action is really one to foreclose the Bentley and Green mortgages, both of which were executed by Mrs. Pierce, and both of which are unaffected by the contract of October 16, 1878, except as to times of payment. Of course, if such is the nature and [376] scope of the action, this judgment cannot stand, for Mrs. Pierce should be a party to the action, and a strict foreclosure cannot be decreed; but the question of homestead disappears from the case. The writer of this opinion is strongly inclined to take this view of the action, but it is unnecessary for the court to determine the point. The judgment must be reversed, however, on other grounds. 1. The defendant company is the owner in fee of the land in question, and entitled to become the owner of the building at any time by terminating the lease. Its title is paramount to the title of the plaintiff, and cannot properly be affected by the judgment. Yet, unless Pieros pays the sums specified therein, the judgment divests the company of its title. The plaintiff can only obtain by his judgment the interest which Pierce took under his lease, and it should so provide. 2. The case is not one for strict foreclosure. The instrument of November 9, 1877, is not an absolute conveyance by Pierce of his interest under the lease, as the circuit court erroneously found; neither is it an assignment of such interest, but only a mortgage thereof. Like any other mortgage, it is a conveyance with a defeasance, and vested in the plaintiff, at most, a mortgage interest only. The contract of October 16,1878, upon which the judgment is predicated, is a mere addendum or supplement to the mortgage of November 9, 1877, fixing the amount of the mortgage debt, and changing the time when it should become due. If this action is not one to foreclose the Bentley and Green mortgages, it has certainly become an action to foreclose the mortgage of November 9, 1877, as modified by the contract of October 16, 1878. In either case the plaintiff is but a mortgagee. Under all the authorities there must be a sale of the mortgaged property (which is the interest of Pierce under his lease), and a strict foreclosure cannot prop [377] erly be adjudged. Plato v. Roe, 14 Wis, 453; Sweet v. Mitchell, 15 Wis., 641; Rogers v. Burrus, 53 Wis., 530; R. S., 816, sec. 3154. 3. The recovery includes the debt secured by the mortgage to Mrs. G-reen. It does not appear that she has ever assigned her mortgage, or that the plaintiff has any interest in it. It should be shown that the plaintiff owns that mortgage, also, or else Mrs. Green should be made a party to the action. When that is done, the usual judgment of foreclosure and sale may properly be rendered. By the Court.— Judgment reversed, and cause remanded for further proceedings as indicated in this opinion.