Citizens Loan & Trust Co. v. Witte
Citizens Loan & Trust Co. v. Witte
Opinion of the Court
This case was here upon a former appeal from that part of a judgment of foreclosure and sale of the mortgaged premises rendered January 9, 1902, which adjudged that the defendants Otto and Katherine Witte were not' personally liable for the whole or any portion of any deficiency that might arise upon the sale of the mortgaged premises, by virtue of the deed to them of the premises executed January 16, 1894, wherein they assumed, as a part of the purchase money, and thereby agreed to pay, the notes secured by the mortgage. Citizens L. & T. Co. v. Witte, 116 Wis. 60, 63—66, 92 N. W. 443. This court reversed that judgment, and held that Otto and Katherine Witte were personally liable for such deficiency, and remanded the cause to the
The statute provides, in effect, that the judgment of foreclosure and sale shall fix the amount of the mortgage debt, as therein prescribed, “and shall adjudge that the mortgaged premises be sold for the payment of the amount adjudged” therein, “and when demanded in the complaint,” as here, “an order directing that judgment be rendered for any deficiency against the parties personally liable therefor; but
“The mortgagor, his heirs, personal representatives or assigns, may redeem the mortgaged premises from the effect of said judgment and the lien of the mortgage thereon at any time before the sale of such premises by paying to the clerk of the court in which the judgment was rendered, or to the plaintiff therein, or any assignee thereof, or to his attorney the amount of such judgment, interest thereon as aforesaid and costs,” etc. Sec. 3165, Stats. 1898.
The title to the premises, subject to the mortgage^ passed from the mortgagors, through mesne conveyances, to the defendants Otto, and Katherine Witte; and henee they, as such assignees, had the right to redeem. Wylie v. Welch, 51 Wis. 351, 8 N. W. 207. So long as the original judgment of foreclosure and sale exonerated them from any liability to pay any deficiency, they may not have cared to redeem, or whether the mortgaged premises, on sheriff’s sale, brought much or little. But when, on January 24, 1903, they were adjudged liable for the payment of such deficiency, then it was for their interest either to redeem from the judgment, or see to it that the premises at the sheriff’s sale should bring as large an amount as possible. This court has held that the part of the judgment “which orders a judgment for a deficiency is an integral part of the judgment.” Kane v. Williams, 99 Wis. 65, 74 N. W. 570. The judgment so entered January 24, 1903, was a new judgment, and the only judgment against Otto and Katherine Witte, and hence the sale was premature as to them. The case is distinguished from Bostwick v. Van Vleck, 106 Wis. 387, 389, 82 N. W. 302, whereby an amendment a mere clerical mistake in the entry of the judgment
By the Court. — The order of the circuit court is affirmed.
Reference
- Full Case Name
- Citizens Loan & Trust Company, Administrator v. Witte and others, imp.
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- Published