Gibson v. Southwestern Land Co.

Cassoday, J. The plaintiffs were not joint tenants nor tenants in common with any of the other parties to the action. They had neither the actual, nor constructive possession or right to the possession of the premises, and hence could not have maintained an action for partition. R. S. sec. 3101; Morse v. Stockman, 65 Wis. 36. As creditors having a lien upon the whole premises, they certainly were not necessary parties to the partition suit, and it may be questionable whether they were proper ■ parties. R. S. sec. 3103. A creditor having a lien upon any undivided interest or estate in the premises sought to be partitioned is a proper, although not a necessary, party. Ibid. In such case the statute provides that, “ if partition is made, suGh hen upon an undivided interest or estate shall thereafter be a charge only on the share assigned to the party against whom it exists, which share shall be charged with its just proportion of the costs in preference to such lien, but in no other case shall such petition alter, affect, or im/pai/r the Men of any such creditor.” R. S. sec. 3103. Such being the law, it is manifest that the plaintiffs were not bound to refrain from the foreclosure of their mortgage, merely because they had been made defendants in such partition suit. Whether they could, by conduct in such partition suit, estop themselves from maintaining such foreclosure action, is a question not presented by this record. The respective suits seek different relief, are to secure entirely [52] different objects, and require different parties. We must therefore hold that the pendency of the partition suit was no bar to the commencement and maintenance of the foreclosure action. The court was expressly authorized by statute, in the judgment, as here, to enjoin the defendants and all persons claiming under them from committing any waste or doing any act that may impair the value of such premises, at any time after the date of the foreclosure judgment. R. S. sec. 3164. It does not appear from the record that there was any oppressive or improper exercise of such authority in the case at bar. We find no error in aEowing interest on deferred payments of interest, as agreed in writing and signed by the mortgagor. Such agreement is expressly authorized by the statute. R. S. sec. 1689. Nor can we say that the allowance of $100 sohcitor’s fee, as stipulated in the mortgage, is unreasonable. By the Court.— The judgment of the circuit court is affirmed.