Connell v. Welch

WiNsnow, J. The rule of law is well established that when-the estates of two persons are subject to a common mortgage, which one pays for the benefit of both, he becomes-entitled to a lien upon his cotenant’s share of 'the estate to-the amount of the equitable proportion of the sum paid to10 Redeem, provided the equities of the parties are equal. Jones, Mortgages, § 1089; Stewart v. Stewart, 90 Wis. 516. In tbis case tbe equities of the parties are equal. Neither of them is personally liable to pay the mortgages, but they have succeeded to the ownership of the equity of redemption in the mortgaged lands, either as heirs of the mortgagor or by purchase from heirs. That this was the universal rule in •equity is not seriously denied by the respondents, but it is claimed that the rule- no longer applies, on account of the provisions of sec. 3166, E. S. 1878. This section provides, .among other things, that the owner of an undivided interest .in mortgaged lands may redeem such undivided interest from the lien of a judgment of foreclosure of the mortgage by paying his proportionate share of the judgment, taxes, •and interest thereon. It is argued that the former-equitable rule sprang out of the necessity which a tenant in common was under of paying the whole debt in order to redeem his own share; hence that, the necessity having been taken away, the rule no longer applies. It will be at once noticed that the section only applies to a mortgage which has been foreclosed and passed into judgment • hence that it would :seem not to apply to the first mortgage which was redeemed from in the present case, upon which no action of foreclosure had ever been commenced, and the old rule would still apply as to the amount paid to redeem from that mortgage. But, however this -may be, we regard the statute in question .as one granting practically an additional and less burdensome remedy to the tenant desiring to redeem, which, under familiar principles, does not supersede the previously existing remedy unless the intent to take away the previous remedy is expressed or clearly implied. Goodrich v. Milwaukee, 24 Wis. 422. It would be manifestly inequitable to hold that the defendants’ moietjr of the premises is discharged from the lien of the mortgages, when they have paid nothing thereon; and equity is ever zealous to keep alive a mort [11] gage, though discharged of record, when it is necessary in order to do complete justice and enforce good conscience between parties. Stewart v. Stewart, supra, and cases cited. By the Gourt.— Order reversed, and action remanded with ■directions to overrule the demurrer, and for further proceedings according to law.