Lamberson v. Bailey

The following opinion was filed June 17, 1914: Winslow, C. J. The whole question of plaintiff’s interest in the premises depends on whether he made a sufficient redemption payment, and this depends on the question whether Bailey became the owner, of the judgment for costs by virtue of his purchase thereof from the Youngs in March, 1912, without notice of the plaintiff’s prior assignment from the Youngs through Vaughan. In other words, is Miner entitled to protection because he paid a part of the judgment to Bailey, who was an innocent purchaser thereof ? It is urged that if he is not given such protection the result will be that he will be paying that part of the judgment twice, and this seems to be true, but after all this is not the test. To avoid circuity of action and provide for the adjustment of all difficulties between the parties in one proceeding, the trial court decided in the redemption action that if redemption was in fact made the redemptioner might use the judgment, for costs against Miner which had been rendered in that action as a part of the redemption moneys. That provision was certainly a valid one. It could be taken advantage of by the Youngs or by their grantees at any time within the year allowed for redemption, unless, of course, the judgment had been collected and discharged. Every one dealing with the [110] judgment during that year must take notice of the fact that the taxed costs may be used as a part of the redemption fund, because the judgment itself so provides and impresses the cost judgment with the character of redemption money. When Bailey took his assignment of the judgment he was charged with notice that the Youngs had already conveyed a half interest in the land and that the grantee of that interest was entitled at any time to redeem under the provisions of the judgment. Bailey s title to the judgment for costs was therefore subject to the right of that grantee, or any person to whom he might convey his interest, to make redemption, using as a part of the funds for that purpose this fund, unless indeed the Youngs had collected the judgment before conveying the land. This result seems incontrovertible and disposes of the contention that the Youngs might, after their ¿conveyance to .Vaughan, sell and dispose of any part of the judgment or the claim against Shannon for rent to the prejudice of Vaughan or Vaughan’s grantee. The claim that the redemption payment was too small be<cause interest on the mortgage was computed from December 6, 1911, instead of from October 25th, does not seem to be well founded. The complaint in the present action alleges that the judgment in the redemption action was entered December 6, 1911, and that it was adjudged thereby that redemption might be made by payment into court of the sum of $695,18, together with interest thereon at six per cent, per annum from said date. These allegations are admitted in the various answers, and we do not find any proof to the contrary in the bill of exceptions, although it seems probable that interest should have been allowed from October 25th, which was the date of the findings in the redemption action. The conclusion is that the amount paid by the plaintiff was sufficient to effect a redemption of the premises. Upon the second branch of the action the result cannot be seriously in doubt. “When the estates of two persons are [111] subject to a common mortgage which one pays for the benefit of both, he becomes entitled to a lien on his cotenant’s share of the estate to the amount of the equitable proportion of the sum paid to redeem, provided the equities of the parties are equal.” Connell v. Welch, 101 Wis. 8, 76 N. W. 596. Both parties claim under the Youngs, who gave a mortgage to Lybrand on the whole premises. Later they conveyed by warranty deed one half the premises to the plaintiff’s grantor, “free of incumbrances,” thereby imposing the Lybrand-Miner mortgage on the half which they retained as between themselves and the plaintiff. Plaintiff has paid the whole mortgage in order to protect his undivided half; but as against the Youngs and their grantees he is entitled to have his half free from incumbrance, so it seems certain that the judgment to be rendered in this case should provide for the establishment and enforcement of a lien in plaintiff’s favor on the undivided half interest in the land deeded to Bailey and now held by Miner for the amount actually paid by the plaintiff' to redeem, viz. cash, $469.13; taxable attorney’s fees, $97.76 total, $566.89, with interest from December 6, 1912. By the Court. — Judgment reversed, and action remanded with directions to render judgment for the plaintiff in accordance with this opinion. A motion for a rehearing was denied, with $25 costs,, on October 6, 1914.