White v. Daniell

Dodge, J. The finding of the court, substantially to the effect that the deed was used for the purposes for which it was executed by the wife, J ohanna M. Daniell, is sufficiently supported by evidence; indeéd is hardly antagonized in any way except by the assertion that her knowledge as to the amount to be secured was wholly indefinite. That fact existing, the statute (sec. 2203, Stats. 1898) requiring that any conveyance or incumbrance of the homestead must be executed by the wife is satisfied. There is no dispute that the judgment correctly defines the indebtedness .agreed to be secured by the deed. It therefore correctly adjudges a foreclosure thereof as a mortgage and sale in the manner prescribed by statute for mortgages. . Appellant, without having assigned error thereon, criticises the judgment, because it fails to provide that the plaintiff shall convey back the premises in case of redemption, which was held to be a necessary provision in Phelan v. Fitzpatrick, 84 Wis. 240, 54 N. W. 614. While doubtless such a conveyance might properly be required in protection merely of the direct chain of record title, it is in no wise essential to the re-establishment of defendants’ complete legal title. The judgment establishes that the deed from defendants to plaintiff is a mortgage, and if the record of that judgment discloses full redemption it must of necessity declare plaintiff’s interest at an end. The legal title has at all times remained in the defendants, and this deed, accompanied by the adjudication that [276] it'is a mere mortgage, creates nothing hut a lien thereon. Cumps v. Kiyo, 104 Wis. 656, 659, 80 R. W. 937. It will he fully discharged by satisfaction of the judgment, which may he recorded in registry of deeds. Sec. 2236, Stats. (1898). In the Phelan Case the chain of title was confused hy the fact that the deed to the plaintiff, held to he a mortgage in that case, did not run directly from the defendants, the legal owners, but from the sheriff upon a- prior foreclosure judgment of another mortgage. Besides, there was at that time no statutory provision for recording such judgments with register of deeds as now. Sec. 2236. There was therefore more ground for requiring a reconveyance from the mortgagee upon a satisfaction of his foreclosure judgment in that case than in the present instance, where defeating the deed upon which alone the plaintiffs title rests necessarily re-estahlishes the defendants’ title even of record. The non-necessity of a recon-veyance from the mortgagee in such a case as this was inferentially declared without express consideration in McFarlane v. Louden, 99 Wis. 620, 75 N. W. 394. We are convinced that no prejudice can result to the defendants from such omission from the present judgment. ■By the Court. — Judgment affirmed;