Wisconsin National Loan & Building Ass'n v. Webster

Dodge,, J. Tbe actual decision of the trial court which resulted in the order appealed from was to the effect that the appellant insurance company, by paying the full amount of its policy, had so effectively waived all forfeitures under the-terms of the policy by reason either of vacancy without consent or of commencement of foreclosure proceedings without notice to the company that it could not assert that the policy had become void. It seems almost too plain for debate that such decision ignored or neutralized the express stipulation of the parties at the time of the payment to defendants of the-$21.25, which, it is true, equaled the full face of the policy, with the previous payment to the mortgagee. Clearly, no-waiver of forfeitures could be predicated upon the payment to the mortgagee of the amount of its mortgage. That payment the company was required to make by virtue of the mortgagee clause, whether the policy had become void or not. It is in evidence that it was made for that reason, and to facilitate the subrogation provided for in that clause — perhaps unnecessarily — an express and formál assignment of the foreclosure judgment was made to- the insurance company. These facts exclude any inference that the insurance company intended to waive any forfeitures in making that' payment. So, when the appellant and respondents met to settle their litigation, no waiver had taken place, and appellant’s right by subrogation to enforce the foreclosure judgment was clear and complete, if the policy was void for either of the reasons now assigned. Whether the payment of the-balance of the policy to the defendants in silence and with no reservation of pre-existing rights might have proved or constituted a waiver, need not be decided. The parties, in the most explicit terms, by their stipulation agreed that it should have no such effect. This left them in the same relative situation that they were before that payment was made. The appellant had a right to enforce the foreclosure judgment if the amount paid to the mortgagee was, by reason of [481] forfeiture, not payable to tbe defendants upon tbe policy, and defendants bad tbe right to insist that no forfeiture bad taken place. >'•' Clearly, tben, tbe court erred in deciding as matter of law, without bearing tbe facts, that tbe policy was not forfeited; and tbe question presents itself whether, upon this record, it should be held that tbe forfeiture is established, so that an order ought to have been entered sustaining appellant’s rights to foreclosure sale and deficiency judgment, or whether the question of fact on which the forfeiture is predicated should still be tried. It is, of course, obvious that that question has not been tried by the referee or by the court The only thing in the record bearing thereon is the affidavit asserting that fact which was presented in answer to the defendants’ affidavit stating why the appellant’s application for confirmation should not be granted, and also as a basis for the respondents’ alternative motion to cancel the judgment. No counter affidavit was filed denying those facts, and yet the parties and the court evidently considered that an issue was raised, and that the facts stated in that affidavit were not admitted. Appellant contended that they ought to be submitted to the referee in common with other facts, and the only reason urged here for not doing so was their immateriality by reason of the waiver which the court predicated upon the payment of the money. In this attitude we conclude that it would be unsafe for us, to assume that the facts of vacancy without consent by the insurance company and of absence of notice to it of the foreclosure proceeding's were admitted. Hill v. Am. Surety Co. 107 Wis. 19, 28, 34, 81 N. W. 1024, 82 N. W. 691; Brown v. Griswold, 109 Wis. 275, 85 N. W. 363. That question therefore should be passed upon as one of fact by the trial court, either upon existing evidence or such other proofs as the court may receive; and,-if such forfeiture be established, the appellant’s motion for confirmation of foreclosure [482] sale and entry of judgment for tbe ascertained deficiency should be granted. By the Court.- — Order appealed from is reversed, and cause remanded for further proceedings in accordance with law and this opinion.