Bassett v. McDonel

By the Court,

As we understand this case, the answers of Shiells and McDonel raised material issues, which should have been tried and disposed of before judgment of foreclosure and sale was rendered. Shiells claims in his answer to be a subsequent purchaser of a portion of the mortgaged premises, and insists upon his right to have them sold in the inverse order of alienation. He further claims that the supplemental agreement of the mortgagors to pay 12 per cent interest on all sums due and unpaid on the mortgage on the 1st of January, 1857, has no. effect as to him, and could not become a lien upon the premises purchased by him. If he bought before this agreement to pay additional interest, or afterwards, without any notice of it, we cannot see but this portion of his answer must prevail.

Again, McDonel claims that he and Graham have made partition of the mortgaged premises; that he has paid nearly his share of the mortgage debt, and therefore insists that Graham's portion should first be sold. Now all these matters are left undisposed of, and the ordinary judgment of *447foreclosure and sale was rendered. It seems there was an ex parte order of reference to compute tbe amount due, as ordinary cases of default. This was improper practice in view of tbe matters set up in tbe answers. It is insisted that by tbe order of reference, tbe referee was required to take proof of tbe facts stated in tbe complaint and answers, as well as compute tbe amount due ; and that we must presume tbe referee complied witb tbe order. But bis report is utterly silent as to tbe facts stated in tbe answers. It does not state tbat be took any proof offered to sustain tbem, or that be gave the appellants any opportunity to bring forward their testimony to support tbe answers. Indeed tbe cause seems to have proceeded to judgment in tbe same manner as though no answers bad been filed. If this ■ practice can be sustained, we cannot see why it might not be under all circumstances, however good and sufficient a defense a party might have in a foreclosure case. No attention is paid to tbe answer; an order of reference is made ; tbe referee reports tbe amount due; no notice is given to the defendant for taking proof, nor any opportunity to make bis defense. If tbe referee was required to take proof of tbe facts stated in tbe answer, tbe appellant should have bad some notice as to tbe time and place when testimony would be taken. If tbe answer of McDonel was sustained,' then by tbe decision in Ogden vs. Glidden, 9 Wis., 46, be bad a right to have Graham’s portion of tbe premises first disposed of to satisfy tbe judgment. And Shields, of course, being a subsequent purchaser of a portion of tbe premises, could insist upon tbe property being sold in tbe inverse order' of alienation.

We think the judgment must be reversed, and the cause remanded, with directions properly to determine tbe facts set up in tbe answers, and enter a judgment thereon in conformity to this decision.

'Judgment reversed, and cause remanded for further proceedings ’according to law.