Phelan v. Fitzpatrick

PiNNEY, J. 1. The appellant, Bridget Fitzpatrick, had sufficient interest in the-mortgaged premises adjudged to be sold in the suit of'Thom as Williams against Bridget Fitzpatrick and the heirs at law of Patrick Fitzpatrick, deceased, to entitle her to redeem the mortgaged premises and to make such arrangement as would best protect her interest therein. She accordingly entered into the arrangement with Martin Phelan by which he was to purchase the premises at the foreclosure sale under that judgment, and acquire title thereto, and convey the same to her upon request, when she might get ready to pay it,, there being no certain — 247 — time mentioned when the money was to be repaid. In this manner he- acquired the absolute title to the premises in •question, and, but for the nature of the transaction between himself and Bridget Fitzpatrick, he might have ejected her from the premises at once, upon obtaining a sheriff’s deed. But it is plain that the legal effect of the transaction in question is that he became, in equity, a trustee of the legal title for her use, which she was entitled to have conveyed to her on payment of the $471 and interest thereon. Her possession thereafter was subordinate to his rights as the holder of the legal title, and was in no sense whatever adverse, nor is there the slightest testimony to show that it became hostile or adverse at any time prior to the commencement of the action, so as to operate as a bar to the ■enforcement of Phelan’s title. There can be no doubt but that the transaction was, in substance, a loan of the money, and the taking of the title by Phelan in the manner described constituted an equitable mortgage on the premises for its repayment. It is well settled that whenever property is transferred, no matter in what form or by what conveyance, as mere security for a debt, whether from the debtor or from some other person at his request, the person to whom the transfer is made takes merely as a mortgagee, and has no other rights or remedies than the law accords to mortgagees. Schriber v. Le Clair, 66 Wis. 579. And so, also, where the owner of the equity of redemption procures another to advance money to bid in his property on sheriff’s sale, and take a title thereof for the benefit of .such owner, with the understanding that he will reconvey the same to him on repayment of the money so advanced, the transaction, in equity, constitutes a mortgage. Hoile v. Bailey, 58 Wis. 448; Swift v. State L. Co. 71 Wis. 476. The sheriff’s deed to Phelan operated as a conveyance of the title of all the parties to the judgment of foreclosure under which it was made, and had the effect of a quitclaim. — 248 — deed to Phelan for the purpose of obtaining a loan of the $471, and this action is founded on the deed, a sealed instrument, in order to give it, as between the plaintiffs and Mrs. Fitzpatrick, the effect of an equitable mortgage; and, so far as the defense that the plaintiffs’ remedy to foreclose is barred by the statute of limitations is concerned, if applicable, the case is governed by the bar of twenty years, under subd. 1, sec. 4220, R. S. Until the sheriff’s deed was executed, November 17, 1871, Mrs. Fitzpatrick or either of her code-fendants had a perfect right to redeem from the foreclosure sale. The cause of action in this suit did not accrue until after the execution and delivery of that deed, which was about eight months less than twenty years before this action was commenced, and therefore this defense, if applicable, wholly fails. The letters offered in evidence, taken in connection with the transaction to which they relate, amount to an admission that the land was held as security for the payment of money, and, while they are not sufficient to remove the statute bar as to a personal liability against Mrs. Fitzpatrick, they are available as evidence to show that the relation of mortgagor and mortgagee existed between the parties. Heyer v. Pruyn, 7 Paige, 465. The fact that Phelan on April 10, 1877, and November 3, 1879, by the direction and with the approval and consent of Mrs. Fitzpatrick, sold and conveyed two parts or parcels of the premises, the consideration being paid to her, is cogent evidence of this relation between them. The common-law presumption of payment arising from the lapse of twenty years had not arisen when the action was commenced; and Mrs. Fitzpatrick, in her testimony, limits her contention of payment to the cross demand set up in the counterclaim, which, it will be seen, cannot be sustained. Inasmuch as there has been no denial of the relations that existed between them as equitable mortgagor and mortgagee, she, at the time this action was commenced, might have maintained a — 249 — suit to redeem the laud on paying the money; and the plaintiffs have a corresponding right to foreclose the equitable mortgage in order to collect the amount due. The case of Spear v. Evans, 51 Wis. 42, shows that the contention of the defendant Mrs. Fitzpatrick that the action is barred by either the ten or twenty years statute cannot be maintained. But we do not think that either the ten or twenty years bar has any application to the case. There is an important difference between this equitable mortgage, where all the right the equitable mortgagor has left is a mere right to pay up or redeem, and a legal mortgage, which is not a title, but a security. Here the equitable mortgagee has the entire title. Her right of redemption may become barred by the statute, but she cannot get the legal estate again but by redeeming. Until redemption, it remains with the equitable mortgagee. Mrs. Fitzpatrick could not maintain a bill to redeem, and have the legal estate adjudged or conveyed to her, upon alleging and showing that the debt secured by the equitable mortgage had been barred by the statute, as an excuse for not tendering it or submitting to its payment. Although the debt may be barred by the statute, the plaintiffs are still entitled to a judgment of foreclosure and sale. Bishop v. Douglass, 25 Wis. 696; Wiswell v. Baxter, 20 Wis. 680; Cerney v. Pawlot, 66 Wis. 262. 2. The claims embraced in the counterclaim cannot be regarded as payment. They are but cross demands, which might have been applied as a payment by act of the parties or by the judgment of a court. The fact that Mrs. Fitzpatrick presented a claim against the estate of Martin Phelan, for the same matters, to the county court, and that after long and troublesome litigation she was allowed to recover the sum of only $944.95, which has been paid to her, is a conclusive answer to her counterclaim. The question as to the extent of her claim for the board and serv — 250 — ices in question was adjudicated between tbe parties to that proceeding, and hence the judgment in that case is conclusive that she had no claim against Martin Phelan in excess of the sum awarded to her, and she is now estopped from claiming to the contrary. 3. The relation of creditor and debtor undoubtedly existed between Phelan and Mrs. Fitzpatrick in respect to the $411 advanced, and interest thereon. The contract between them raises a presumption that such personal obligation existed; and while the cases of Musgat v. Pumpelly, 46 Wis. 666, and Hoile v. Bailey, 58 Wis. 448, support this conclusion, and although no time was specified within which the $471 was to be repaid, yet it was, in effect, payable on demand, and the principal sum would bear interest at the lawful rate. The demand was a liquidated one, and was not, therefore, within the rule of Marsh v. Fraser, 37 Wis. 149, and other cases cited by appellant’s counsel. It is, however, obvious that the right of plaintiffs to insist upon a personal judgment against Mrs. Fitzpatrich for the principal sum or any part thereof has been barred by the six years statute of limitations. The letters relied on to take the personal liability out of the six years statute are wholly insufficient for that purpose, within the rule in Pierce v. Seymour, 52 Wis. 272. The first one contains no acknowledgment whatever of the debt, and she claims in it that it had been paid long before, and it does not contain an unqualified promise to pay it. The second letter is still more unsatisfactory. It does not contain any acknowledgment of any specific debt. For this reason no judgment for deficiency could properly be rendered, and the judgment of the circuit court, in that respect, is erroneous. 4. The judgment properly provided for a sale of the premises in question, instead of a strict foreclosure; but upon an examination it appears to be wholly insufficient’to protect the rights of the defendant Mrs. Fitzpatrick in case — 251 — she should pay the amount adjudged due. There is no method under it by 'which she can save the land without being subjected to the costs and delay of a sheriff’s sale under the judgment. The legal title to the premises being vested in the heirs of Martin Phelan, the judgment should have provided for a conveyance from them to Mrs. Fitzpatrick upon payment of the judgment, or in lieu thereof the court should have adjudged that in that event the legal title to the premises be passed to and vested in her. For these reasons the judgment must be reversed and the cause remanded with directions to enter a new judgment of foreclosure and sale for the amount found due, with proper provisions to assure to Mrs. Fitzpatrick the title to the premises in case she pays it, and without any judgment, or provision for any, against her for any deficiency that may remain after a sale of the mortgaged premises. By the Oourt.— The judgment of the circuit court is reversed, and the cause remanded with directions to enter judgment accordingly.