Hammond v. Erickson

116 N.W. 173, 135 Wis. 570, 1908 Wisc. LEXIS 160

• Court: Wisconsin Supreme Court
• Decided: May 8, 1908
• Status: Published

Opinion

Douge, J.

"Whatever effect a tender may have technically to discharge the lien of a mortgage, a subject treated at some length in Kortright v. Cady, 21 N. Y. 343, and referred to in Breitenbach v. Turner, 18 Wis. 140, Mankel v. Belscamper, 84 Wis. 218, 45 N. W. 500, and Gould v. Sullivan, 84 Wis. 659, 665, 54 N. W. 1013, it is uniformly Reid that a court of equity will not extend affirmative aid to the mortgagor to cancel such mortgage and quiet the title against it except upon the condition that he do equity on his own part by paying the debt which was secured by the mortgage lien. Tuthill v. Morris, 81 N. Y. 94; Breunich v. Weselman, 100 N. Y. 609, 2 N. Y. 385; Werner v. Tuch, 127 N. Y. 217, 27 N. E. 845; Nelson v. Loder, 132 N. Y. 288. This is in accord with a most fundamental principle, that to enable one to arouse the peculiar activities of a court of equity in his own behalf it is essential that he should offer to do' full equity in the first instance, a principle fully sanctioned by our own decisions. Hill v. Buffington, 106 Wis. 525, 82 N. W. 712; Havenor v. Pipher, 109 Wis. 108, 115, 85 N. W. 203 ; Blackman v. Arnold, 113 Wis. 487, 492, 89 N. W. 513; Beaser v. Barber A. P. Co. 120 Wis. 599, 98 N. W. 525. Clearly, therefore, the decision of the trial court that Ericlc-sons counterclaim for cancellation of the mortgage could not be sustained in the absence of any offer in that pleading to pay the true amount of plaintiff’s debt was correct. The portion of the judgment foreclosing the mortgage for the amount actually due is not appealed from.

In this situation, where the plaintiff is defeated as to the litigated question over a small amount of his indebtedness, and the defendant suffers defeat as to the much more important issue upon the entire cancellation of plaintiff’s mortgage, we certainly cannot think the exercise of the court’s undoubted discretion over the award of costs in suits in equity has been abused to the prejudice of the defendant when costs are merely withheld from both parties. Subd. 7, sec. 2918, Stats. (1898); Hill v. Durand, 58 Wis. 160, 15 N. W. 390; Malone v. Waukesha E. L. Co. 120 Wis. 485, 98 N. W. 247.

By the Court. — Judgment affirmed