Swift v. State Lumber Co.

Cassodat, J. Upon the facts stated, and numerous decisions of this court, we must hold that the plaintiff was, in legal effect, the owner of the undivided one-fourth of all the lands in question, October 14, 1871, subject to the payment of the $10,000 mentioned; and that when D. W. Bradley and Lovejoy advanced the amount of money named and received the conveyances from Jenkins, they took and received the title to such undivided one-fourth as security for the money so advanced, and such interest, taxes, etc.; and hence, under the agreement mentioned, the relation between the plaintiff and them was, in legal effect, that of mortgagor and mortgagees. Starks v. Redfield, 52 Wis. 352, 353; Hoile v. Bailey, 58 Wis. 448; Schriber v. Le Clair, 66 Wis. 579; and cases cited in these references. By such conveyances X). W. Bradley got the legal title to twelve twentieths of the lands, and Lovejoy three twentieths, while the other five twentieths remained in Jenkins. July 13, 1872, D. W. Bradley sold and conveyed to the- Kelleys four twentieths of the lands, and September 15, 1875, he made a voluntary conveyance of his other eight twentieths to his son Edward.' November 10, 1882, Jenkins, Edward Bradley, the Kelleys, and Lovejoy conveyed the whole of the lands, except fourteen forties apparently worthless, to the defendant company. These several conveyances must each in equity be regarded asan assignment of a fractional part, or the whole, of any balance that may have remained unpaid on the mortgage at the times 'they were respectively made. Whether or not there were any such unpaid balances can only be determined by an accounting and trial upon the merits. This action, therefore, is essentially a bill for an accounting by these defendants, and for a redemption from the mortgage, and a reconveyance from the defendant company. [483] The principal contention is that there is a defect of parties defendant. It is claimed that, as a matter of fact, Edward Bradley took such title from his father in trust for himself and his two brothers, "William H. Bradley and James W. Bradley, who should be made parties defendant. Since the deed to Edward was absolute in form, it would seem that, even upon the showing of the defendants, he was at least a trustee of an express trust, within the meaning of the statutes. Sec. 2607, R. S. Winner v. Hoyt, 66 Wis. 234, 235; State v. Wettstein, 64 Wis. 243; Platteville v. Hooper, 63 Wis. 383; Poor v. Guilford, 61 Am. Dec. 749; Johnson v. Catlin, 62 Am. Dec. 622. This being so, he could maintain an action in relation to the land without joining his brothers. Ibid. Having the right to thus sue alone, we perceive no reason why he may not with equal propriety defend the title thus acquired, without joining his brothers as defendants. Certainly, the conveyance to him carried with it all the title his father had in the lands at the time it -was made, and that same title has since been conveyed to the lumber company. Since neither William H. nor James W. has any legal title or interest in the land, and no attempt is made to charge them personally, they cannot be regarded as necessary parties to this action. The same is true respecting the personal representatives of the D. W. Bradley estate, and also both of the Kelleys. Certainly it is unnecessary for the assignor of the mortgage to be made a party in an action to redeem from the mortgage. That is practically what is sought to be required here. Neither the Kelleys, nor any of the other absent parties mentioned, have submitted themselves to the jurisdiction of the court and sought to be made parties. The burden is upon the plaintiff to show that the mortgage has been paid, and hence that he is entitled to a reconveyance. Such payment is claimed by reason of his share of the net proceeds of timber removed and sales of timber and land. [484] If the plaintiff’s share of such net proceeds were at any time sufficient to pay off and satisfy such indebtedness, interest, taxes, etc., in accordance with the contract, then the mortgage thereby became extinguished, and the plaintiff thereby became entitled to a reconveyance of his share of the land; and if, thereafter, any timber was removed from the land, or any timber or land sold, then the plaintiff would be entitled to recover his share of such excess from the party removing' or selling, or authorizing or causing such i’eino val or sale. But, even in that event, these defendants, in the absence of any liability created bj^ contract, could onty be chargeable with so much of such share of such escess as should arise from such removal or sales by themselves. While the plaintiff, therefore, may possibly be interested in holding some one liable for his share of such excess who is not a party to this action, yet it is not perceived that the defendants are interested in, or are prejudiced by, the absence of such party. Even if the Kelleys or some other absent party is liable on contract to some of the defendants for timber removed or sold, yet it does not a.ppear that the plaintiff has become bound any such contract, and if not, he certainly cannot be coerced into making it available in this action. The plaintiff is now only proceeding against these defendants, and for an accounting and reconveyance. The answer filed seems to be sufficient to protect the defendants and to raise all equities in which any of them are concerned. If it should appear otherwise upon the hearing, the trial court would undoubtedly allow such amendments as might appear to be just. We are unable to say that there was any abuse of discretion in disallowing the proposed amendment. By the Court.— The order of the circuit courtis affirmed.