Ogden v. Bradshaw

Tbe following opinion was filed January 12, 1915: Timlin, J. Tbe plaintiff in bis complaint set forth two separate causes of action, tbe first at law for damages on a note and on a covenant of payment thereof found in tbe mortgage and on a breach of tbe covenant to pay taxes contained in tbe mortgage; tbe second cause of action was tbe ordinary complaint for foreclosure of a mortgage and sale of tbe mortgaged premises, not, however, seeking judgment for deficiency. No objection was made to tbe form of tbe complaint by demurrer, motion, or otherwise, but tbe defendant made answer to tbe merits and went to trial on such pleadings. There was not even a request made to tbe circuit court that tbe ordinary judgment of foreclosure and sale should be rendered. No exception to tbe form of tbe judgment was taken, [52] and exceptions to tbe findings of fact and conclusions of law were not made until thirty days after judgment and do not cover tbis point. Tbe appellant now seeks to raise for tbe first time in tbis court tbe question wbetber tbe ordinary judgment of foreclosure and sale should not have been given. Tbis cannot be done. Tbe judgment given follows tbe pleading. Tbe jurisdiction of tbe court to render a judgment for damages or its jurisdiction to foreclose a mortgage without making provision for a deficiency judgment are unimpaired. Each pertains to tbe general common-law and equity jurisdiction derived by tbe circuit court from tbe constitution. If it be said tbat all foreclosure actions must proceed under tbis statute, tbe answer is tbat tacit consent, by failure to take any exception to tbe proceeding or make any request for such judgment, waives all objection except tbat tbe court lacked jurisdiction or tbat tbe complaint states no cause of action. Sec. 2654, Stats. 1913. Neither of tbe two latter objections is made or can be made in tbe instant case. Tbe plaintiff could have brought separate actions to achieve wbat be has here done in one action, and it is no serious invasion of defendant’s rights tbat tbe result was accomplished in one action instead of two. Perhaps tbis is why tbe defendant did not ask for any other judgment. Eor tbe law where objection is taken, see Jesup v. City Bank, 14 Wis. 331; Endress v. Shove, 110 Wis. 133, 85 N. W. 653; Tbe appellant contends tbat tbe judgment for damages is unwarranted because an action on tbe note was barred by tbe six years’ statute of limitations. Tbis is true, but tbe mortgage, which is under seal, contains tbe following covenant:' “And the said party of tbe first part, for himself and bis heirs, executors, administrators and assigns, hereby covenants and agrees to and with tbe said party of the second part, bis heirs, executors, administrators and assigns, as follows, to wit: tbat be will pay to tbe said party of tbe second part, bis. heirs, executors, administrators and assigns, tbe sum of money above specified with interest accruing thereon at tbe [53] times and in tbe manner stated in said note, together with all costs and expenses, if any there be.” The sum of $1,650 was previously specified in the mortgage. There is no legal necessity that a bond or note exist as collateral to the mortgage. The covenant to pay a specified sum may he contained in such collateral instrument or in the mortgage itself. There may be two promises, one in the note and another in the mortgage; one on simple contract and the other a covenant under seal. 1 Jones, Mortg. (6th ed.) § 72; 2 id. § 1225. It has been held that judgments for damages against the mortgagor may be had upon his covenant contained in the mortgage to pay the taxes on the mortgaged property. Endress v. Shove, 110 Wis. 133, 85 N. W. 653. It has also' been ruled in numerous cases in this state that after the statute of limitations has run against the simple contract debt evidenced by promissory note to which the mortgage is collateral, the mortgage, being an instrument under seal, may be foreclosed within twenty years after default on the note; but no judgment for deficiency can be given against the mortgagor in such case. Wiswell v. Baxter, 20 Wis. 680; Knox v. Galligan, 21 Wis. 470; Whipple v. Barnes, 21 Wis. 327; Duecker v. Goeres, 104 Wis. 29, 80 N. W. 91; Wells v. Scanlan, 124 Wis. 229, 102 N. W. 571. It would seem to follow that where the covenant to pay is found in the mortgage and the mortgage is a sealed instrument, not only the right to-foreclose but the right to a personal judgment for deficiency would run twenty years from the time of default. We conclude that, the covenant to pay being under seal,, the right to a judgment for deficiency was not barred, and on the authority of Endress v. Shove, supra, that there was properly added to the amount due on the note the amount which the mortgagee was obliged to pay for taxes delinquent by default of the mortgagor, there being an express covenant on the part, of the latter to pay these taxes. The agreement covered by [54] tbe note and mortgage was to pay $1,650 five years after October 9, 1895, witb interest until paid at tbe rate of eight per cent, per annum payable semi-annually, and witb interest at ten per cent, per annum on tbe principal and on all payments of interest after they severally mature until paid. Tbe court by its judgment allowed tbe plaintiff for principal and interest due on tbe note and mortgage up to tbe time of judgment $4,358.26. Tbis meant an allowance of $2,708.26 for interest. Tbis appears to be in line witb tbe contract of tbe parties and does not exceed tbe maximum of ten per cent, per annum simple interest permitted by sec. 1689, Stats. 1913. By the Gourt. — Tbe judgment of tbe circuit court is affirmed.