Bryden v. Cairncross

BahNes, J. The appellants insist that the court erred (1) in not compelling the plaintiff to exhaust his remedy against Agnew on the note, and thereby save the appellants from paying more than $1,600 and interest on the mortgage debt; (2) in not compelling the plaintiff to exhaust such remedy to save the homestead of the appellants; and (3) in not compelling the plaintiff to exhaust such remedy to save the property of Jean B. Cairncross and not compel her to pay her husband’s debts. 1. Cairncross indorsed the Agnew note and waived demand and notice of nonpayment thereof and then delivered it to the plaintiff, and the court found that such note was delivered to secure a new loan of $100 and as collateral security for the payment of the note secured by the real-estate mortgage. This transaction amounted to an absolute agreement on the part of the indorser to pay the note at maturity if the maker did not do so. Hoover v. McCormick, 84 Wis. 215, 217, 54 N. W. 505; Mallory v. Lyman, 3 Pin. 443. It is [482] apparent, therefore, if the finding of the conrt is correct, that Cairncross violated bis plain contract duty, and be is not in a position to claim with very good grace that the plaintiff should have enforced collection of the note when he himself-was under contract to pay the amount of it to the plaintiff and might then enforce collection of it.. Winkler v. Magdeburg, 100 Wis. 421, 16 N. W. 332; Fanning v. Murphy, 126 Wis. 538, 105 N. W. 1056. Delay or passivity on the part of the creditor did not discharge the indorser or relieve him from his contract obligation. Day v. Elmore, 4 Wis. 190; 2 Daniel, Neg. Inst. (5th ed.) §§ 1311, 1326, 1328; Hoover v. McCormick, supra; Loverin & B. Co. v. Travis, 135 Wis. 322, 115 N. W. 829. The evidence is ample to sustain the finding of the conrt that the plaintiff accepted the note as collateral security in the first instance, and not as a payment on the note secured by the real-estate mortgage. Likewise, the evidence is abundant to support the conclusion of the court that the plaintiff did not make the note his own by his subsequent conduct. 2. The .mortgage covered property occupied as the homestead of the defendants and worth $9,000 and other property worth $2,500, leaving security over and above the amount of the homestead exemption to the amount of $6,500. The foreclosure judgment amounts to $2,413.77. It is very evident, therefore, that the mortgaged property is ample to pay the mortgage debt and still leave the $5,000 homestead exemption intact. But if this were not so, we -perceive no reason in this case why those who claim to be endeavoring to protect their homestead should not pay the plaintiff the amount due on the Agnew note and proceed to collect it themselves. On May 24, 1910, about a month before this action was begun, the defendants tendered to the plaintiff $1,755 in full payment of the mortgage debt, and thereafter deposited the amount of such tender in court. So it is quite apparent that they were not debarred from taking up the Agnew note because of inability to do so. [483] 3. On February 26, 1910, tbe defendant George A. Gaimr cross deeded tbe homestead to bis wife, and it is contended by tbe appellants that under tbe decisions in C. Gotzian & Co. v. Shakman, 89 Wis. 52, 61 N. W. 304, and Dahlman v. Greenwood, 99 Wis. 163, 170, 74 N. W. 215, tbe plaintiff should be compelled to exhaust bis remedies against Agnew in order to preserve tbe rights of tbe purchaser of tbe equity of redemption. Tbe cases cited have no application' to tbe situation before us. Tbe wife, if she purchased anything, purchased an equity of redemption. • As such purchaser she stands in tbe same position as tbe principal debtor. She bought subject to tbe mortgage. Tbe property was subject to all outstanding liens to tbe same extent that it was before. Larson v. Oisefos, 118 Wis. 368, 373, 95 N. W. 399. There are additional reasons in this case for saying that tbe wife cannot compel tbe plaintiff to engage in a lawsuit with Agnew. She not only signed tbe original mortgage, but at tbe time tbe plaintiff purchased it, and as a condition of bis doing so, she signed a declaration reciting that there was $2,000 and interest from August 2, 1903, at six per cent, due on tbe note in suit, and that such indebtedness was a valid lien on tbe property involved, and in her verified answer she alleged that she, and not her husband, was tbe owner of tbe Agnew note. There is a suggestion made in tbe brief of tbe appellants to tbe effect that Agnew may have some defense to tbe payment of bis note in a suit brought by tbe payee named therein which would not be available against tbe plaintiff, who became a bona fide bolder of it for value before maturity. If this be true, it furnishes a reason why tbe plaintiff should not and perhaps could not be compelled to enforce collection of it.until tbe mortgage security was exhausted. Union Nat. Bank v. Roberts, 45 Wis. 373, 379. By the Court. — Judgment affirmed.