Kane v. Williams

Winslow, J. The appeal of Stone, the mortgagor, possesses no merit. It is apparently based on the ground that no reformation of the alleged full discharge of the mortgage could be adjudged because no fraud or mistake in the execution of the paper was shown, and because the complaint contained no appropriate allegations upon which reformation could be granted. It is entirely certain that a serious mistake was inadvertently made by the scrivener, by which Kane executed what purports to be a full release of the mortgage when he only intended to release two lots. Stone knew the mortgage was not in fact paid, and knew that Kane’s purpose was only to release the two lots sold to Remington. These facts so clearly appear from the evidence that they cannot be for a moment doubted. Such a case calls for reformation of the document in no uncertain tones. Lardner v. Willia/ms, 98 Wis. 514. Stone preserved no exceptions to the findings, and perfected no bill of exceptions, and he states in his case that his appeal is based simply upon the record. In this position it is manifest that he cannot take advantage of defective pleading, if such there was. The judgment is sustained by the findings. There are no exceptions to the findings; so it must be conclusively presumed that they were based upon sufficient and competent evidence, and that the pleadings were properly amended, if that was necessary. Nor is Williams’ appeal much more meritorious. The release being reformed as to Stone, the mortgage has again [72] become a valid and effective lien as between the owner of the land and the holder of the mortgage. If it is a valid-lien as between these parties, certainly no one else can claim that it is not such a lien, save innocent third persons who-have dealt with the property in reliance upon the apparent discharge. Williams is not such a party, nor were there any such parties in the case save the Zimmermans, whose rights-were protected by'the judgment. Williams’ contract was an absolute promise, for value, to pay the debt. It was not a promise upon condition, but as absolute in respect to payment as the promise of Stone. Upon such a guaranty the-creditor owes to the guarantor “ no duty except to act in the utmost good faith, and not be guilty of laches to his-prejudice.” Hubbard v. Haley, 96 Wis. 578. Williams has not been prejudiced in the least by the mistaken release. The mortgage is still a valid lien upon property worth, by his own admission, more than twice the amount of the-judgment. The amount paid by the Zimmermans to Stone in reliance upon the discharge is deducted from his liability by the judgment, so that he is not prejudiced by that transaction. The point was made by the respondent that the part of the judgment ordering a personal judgment for deficiency is a mere order, and is not appealable, but that the defendant should wait, and appeal directly from the judgment for deficiency when rendered. We do not regard the point ■well taken. As said in Gaynor v. Blewett, 86 Wis. 399: “ The order is a necessary part of the judgment of foreclosure, and is a final adjudication of the defendant’s liability for the debt.” It is an integral part of the judgment, and fixes the rights of the parties, and hence may be appealed from. By the Court.— Judgment affirmed on both appeals.