Posten v. Miller

Lyon, J. 1. This is an action in equity, brought by one of two mortgagors in her own right, and as the heir of the other mortgagor, who is dead, against the holder and owner of four mortgages, who is in possession of the mortgaged lands, and against his assignee with notice of her equities, for an accounting of payments, rents, and profits, and to-redeem such lands from the lien of the mortgages. The plaintiff is the owner of the lands in question, subject only498 to the lien of the mortgages. Such is the case made by the amended complaint. In substance and effect, it is an action by mortgagor against mortgagee in possession, to redeem, and for an accounting of rents and profits received b}r the mortgagee. It is elementary that a court of equity takes cognizance of such an action. Indeed, a court of law can afford no adequate remedy in such a case. Hence the demurrer, so far as it goes to the equity of the complaint, cannot be sustained. @ 2. The action was commenced in the county court of Fond du Lac county, the .jurisdiction of which is limited by statute to cases in which the value of the property in controversy, or the amount of money claimed or sought to be recovered, after deducting all payments and setoffs, shall not exceed $20,000. R. S., 686, sec. 2465. The original complaint stated the value of the land in controversy to be $19,500, and claimed an excess of payments, rents, and proL its, over and above the mortgage debts, of $5,000. The defendants demurred to that complaint, assigning the same grounds as in the demurrer to the amended complaint. The place of trial was then changed to the circuit court by stipulation of the parties, and the demurrer was argued in the latter court and sustained. By leave of court, the plaintiff thereupon amended her complaint, alleging the value of the land to be $14,000, and demanding judgment for $4,000 excess of payments, rents, and profits beyond the mortgage debts. Assuming (but not deciding) that the jurisdiction of the circuit court is limited by that of the county court, and that the value of the property in controversy and the amount of money claimed or sought to be recovered, added together, is the measure of the jurisdiction of the county court; still, the aggregate of such value and amount, as alleged in the amended complaint, is only $18,000, or, if the waste charged be added thereto, only $19,000. The case made by the amended complaint is therefore within 'the [499] jurisdiction of the county court, and the demurrer for want of jurisdiction fails. 3. We find no improper joinder of causes of action in the amended complaint. Theodore Miller is a proper party to the action, because the principal defendant, William A. Miller, had (in form at least) conveyed to him the land in controversy. This conveyance, we suppose, operated as an assignment to him of the mortgage interest of his grantor, and, if the accounting shows a balance unpaid on the mortgage debts, it would belong to him. On the other hand, William A. Miller is also a proper party, because he has received the rents and profits, and is in possession of the land. The gravamen of the action is to enforce the right to redeem from the mortgages, and the accounting is only incidental to the redemption, to enable the court .to find the sum still due on the mortgage debts, or the amount of over-payments, as the case may be. Hence all sums properly chargeable against such debts, whether received by one defendant or the other, or both, should be included in the accounting. The fact (if it be a fact) that the amended complaint shows a part of these sums is chargeable to one of the defendants, and part to the other, does not show an improper joinder of different causes of action. It is but an averment of facts essential to a single cause of action. 4. Something was said in the argument as to the necessity of making the administrator of the estate of Alexander B. Posten a party to the action. We find nothing in the amended complaint showing the necessity of bringing in such administrator. The interest of the deceased in the land descended to the plaintiff at his death, and her right to the possession thereof remains unimpaired until the administrator tabes possession. Jones v. Billstein, 28 Wis., 221. Besides, there is no demurrer for defect of parties. The foregoing views dispose of all the assigned grounds of demurrer adversely to the defendants. By the Court.— Order affirmed.