Farwell v. Wilmarth

26 N.W. 548, 65 Wis. 160, 1886 Wisc. LEXIS 193

• Court: Wisconsin Supreme Court
• Decided: February 2, 1886
• Status: Published

Opinion

Cassoday, J.

All agree that the conveyance from Barber to Wilmarth, and the contract back, were, in substance and effect, the mere security for the repayment of a loan of money and interest, and hence constituted an equitable mortgage. Being such, it merely created a lien upon the land, and Wilmarth took no interest in the same, except as mortgagee, and had no other rights nor remedies than the law accorded to mortgagees, and the equity of redemption remained in Barber as the mortgagor. Brinkman v. Jones, 44 Wis. 498; Howe v. Carpenter, 49 Wis. 702; Spear v. Evans, 51 Wis. 42; Starks v. Redfield, 52 Wis. 352, 353, and cases there cited; Hoile v. McCulloch, 58 Wis. 448; First Nat. Bank of Madison v. Damm, 63 Wis. 253, and cases there cited. Wibncarth being a mere mortgagee, and the mortgage being unpaid, he could in no sense be regarded as indebted to the mortgagor, nor as holding the equity of redemption. The case made did not come within the purview of see. 2752, R. S. If the plaintiffs, as creditors of the mortgagor, desired to collect their debt, or any part of it, out of Barber’s equity of redemption, they should have instituted proper proceedings to reach the land. Certainly the garnishment in this case was not such a proceeding. Smith v. Weeks, 60 Wis. 94.

Upon the issue made we think the court properly held that it had no authority to determine whether the deed given by Barber to Nora before the commencement of the action, or the deed given by Flora to Balch after the commencement of the action, was or was not fraudulent and void as to Barber’s creditors. Those questions were not at issue, and the parties to them were not before the court.

By the Oourt.— The judgment of the circuit court is affirmed.