Lyman v. Smith

21 Wis. 674

• Court: Wisconsin Supreme Court
• Decided: January 15, 1867
• Status: Published

Opinion

Dixon, C. J.

The right of the assignee of the note first due to a preference over the holder of a second or other note secured by the same mortgage falling due subsequently, attaches, in the absence of any countervailing equity, from the time of the assignment of the first note. Such, in effect, were the decisions of this court in Wood and Moon v. Trask, and Marine Bank v. International Bank, 7 Wis., 566, and 9 Wis., 57, by which this case must be governed. The respondent, who took the first note by assignment from the mortgagee before the mortgagee transferred the other note to the appellant, delayed to prosecute his action to foreclose until after the other became due. It is contended, because the action was not commenced until after the maturity of the second note, that the respondent lost his right to be preferred, and that the proceeds of the sale and expenses of the action must be divided pro rata. We are of quite the contrary opinion. It is very obvious that the right of preference, which is in the nature of a vested right or prior lien, cannot be divested in this way. No such principle is to be found in the books.

By the Court. — Judgment affirmed.