LYON, J.
I. The defendants claim that the action was prematurely brought. It is said to be founded entirely upon the judgment in the first action, which was not entered when this action was commenced. If that judgment is the sole basis of this action, the point would seem to be well taken. If so, the plaintiff is not entitled to any judgment, and we can not, on his appeal, modify the judgment in his favor. In such case he must take what the court gave him, or dismiss his action. The question is, therefore, Had the plaintiff a right of action before such judgment was entered? Ch. 123, Laws of 1860, as amended by ch. 240 of Laws of 1861, gives to a person who has a lien upon real estate by mortgage or judgment, the same right of action that the owner in fee has, to test the legality and validity of any tax, charge or assessment on such real estate, or any tax sale thereof, and to annul such tax, charge, assessment or tax sale, and to enjoin the sale or conveyance of the land on account thereof.
It appeared in the first action that, in 1858, the plaintiff commenced an action in the circuit court for La Payette county, [520]*520to foreclose his mortgage executed by Hammett and wife, and that the same was pending when the action first above mentioned was tried, in 1862. (23 Wis., 33.) Mr. Magoon states, in his brief, that a judgment of foreclosure and sale was entered therein in 1859. If that fact was proved on the trial of this action, we have overlooked the evidence which- proves it. But it is quite immaterial whether such action has or has not been prosecuted to judgment. If it has not. the plaintiff, when he commenced this action, had a lien by mortgage upon some portion, at least, of the lands affected by the tax deeds; but if that action was prosecuted to judgment, as claimed, then the plaintiff had the same lien by judgment. In either case he is within the provisions of the laws of 1860 and 1861 above mentioned, in respect to that portion of the real estate to which his lien attached. It is indisputable that the plaintiff had a lien, either by mortgage or judgment, when this action was commenced, on that portion of sec. 30 which Frederick Shadwick conveyed to Hammett, and on the interest of Mrs. Hammett — being one-fourth thereof — in the lands on sec. 30 of which Shadwick died seized. The first tract contains sixteen, and the latter ninety-eight acres.
The judgment recovered in the circuit court for Rock county, by correcting the misdescription of the land on section 29 included in the mortgage, and by subrogating the plaintiff to the original rights of Priddeaux and the other creditors of the estate of Shadwick, whose claims were paid with the money loaned by the plaintiff to the Hammetts, rendered the mortgage of the plaintiff as broad and comprehensive in fact, as it was in terms and intent. The Hammetts assumed to mortgage to the plaintiff all of the land in controversy ón section 30, and attempted to mortgage that on section 29. The judgment carried out the manifest purpose and intention of the parties.
The plaintiff having an undoubted right of action in respect to some portion of the land when this action was commenced, no good reason is perceived why all of the rights of the parties [521]*521pertaining to all of the tax deeds and tax certificates may not be fully adjudicated in this action, although such rights may be affected by the judgment entered after this action was commenced. Those rights were determined by this court before the commencement of this action, the whole matter has been fully litigated, the court is in possession of all the facts, and it seems clear that the whole controversy may be disposed of in this action without injury to either of the parties. If the plaintiff is entitled to recover, it would be manifestly unjust to confine the relief awarded him to the land on section 80, and compel him to bring another action to get rid of the tax deeds of the land on section 29.
The case, in principle, may not be unlike an action brought to foreclose a mortgage given to secure a debt payable in installments. If no installment was due when the action was commenced, although one or more might become due before the trial, the action would necessarily fail. But if any sum, however small, was due at the commencement of the action, the plaintiff would be entitled to judgment of foreclosure and sale, not only for the amount so due, but for any amount which became due afterwards, and before the trial.
We are of the opinion that the action was not prematurely commenced, and, hence, that the plaintiff is in a position to demand a reversal or modification of that portion of the judgment from which he has appealed, if the same is erroneous.
II. Without discussing the point at length, we think that all of the defendants were chargeable with notice, through the whole time of the litigation of the plaintiff’s equities. His right, in some form of action, to be subrogated to the rights of Priddeaux and the other creditors of the estate, whose demands his money had paid, and to have the misdescription in his mortgage of the land on section 29 corrected, was perfectly apparent from the first'; and after the filing, in 1860, of notice of the pendency of the action brought to accomplish those results, no person could safely assume that the plaintiff had failed in [522]*522such action until an unreversed and a final judgment against him could be produced. The fact that the first decision of this court, in 1863, was adverse to the plaintiff, will, not aid the defendants. They are all chargeable with notice that when the conveyances were executed to Mr. Magoon, a motion for a rehearing of the cause was pending in this court.
In relation to the objection that the plaintiff was guilty of laches in allowing the cause to rest for five years in this court, it is only necessary to observe that the Hammetts and the other heirs-at-law of Shadwick, who were defendants in that action, could, at any term of the court during that time, have procured a dismissal of the motion, or could have compelled the plaintiff to submit it to the court for decision. Mr. Magoon was legally chargeable with notice of the status of the case, and should have required the defendants therein to take the steps above indicated before advancing his money on the faith of such first decision.
III. The judgment of the circuit court in this action is, that the tax deeds, so far as they relate to lands of which Shadwick died seized, are void, at least that they are void as to the plaintiff. This portion of the judgment is not appealed from. Hence we are to regard the $350.87, expended by Mr. Magoon in purchasing tax certificates, as a payment of taxes to that amount. This brings us to consider whether that portion of the judgment is erroneous which requires the plaintiff, as a condition precedent to obtaining the relief he seeks, to pay Mr. Magoon the amount paid by him for such certificates.
To determine this question, it is necessary to ascertain the precise circumstances or conditions under which Mr. Magoon paid his money for those certificates. We readily obtain this information from his own testimony, given on the trial. After stating that the deeds of November 2,1865, were executed to him as security for his advances to the Hammetts and for professional services, then amounting to $700, and that he paid immediately thereafter $294.55 for tax certificates, deeds, stamps, etc., and the [523]
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LYON, J.
I. The defendants claim that the action was prematurely brought. It is said to be founded entirely upon the judgment in the first action, which was not entered when this action was commenced. If that judgment is the sole basis of this action, the point would seem to be well taken. If so, the plaintiff is not entitled to any judgment, and we can not, on his appeal, modify the judgment in his favor. In such case he must take what the court gave him, or dismiss his action. The question is, therefore, Had the plaintiff a right of action before such judgment was entered? Ch. 123, Laws of 1860, as amended by ch. 240 of Laws of 1861, gives to a person who has a lien upon real estate by mortgage or judgment, the same right of action that the owner in fee has, to test the legality and validity of any tax, charge or assessment on such real estate, or any tax sale thereof, and to annul such tax, charge, assessment or tax sale, and to enjoin the sale or conveyance of the land on account thereof.
It appeared in the first action that, in 1858, the plaintiff commenced an action in the circuit court for La Payette county, [520]*520to foreclose his mortgage executed by Hammett and wife, and that the same was pending when the action first above mentioned was tried, in 1862. (23 Wis., 33.) Mr. Magoon states, in his brief, that a judgment of foreclosure and sale was entered therein in 1859. If that fact was proved on the trial of this action, we have overlooked the evidence which- proves it. But it is quite immaterial whether such action has or has not been prosecuted to judgment. If it has not. the plaintiff, when he commenced this action, had a lien by mortgage upon some portion, at least, of the lands affected by the tax deeds; but if that action was prosecuted to judgment, as claimed, then the plaintiff had the same lien by judgment. In either case he is within the provisions of the laws of 1860 and 1861 above mentioned, in respect to that portion of the real estate to which his lien attached. It is indisputable that the plaintiff had a lien, either by mortgage or judgment, when this action was commenced, on that portion of sec. 30 which Frederick Shadwick conveyed to Hammett, and on the interest of Mrs. Hammett — being one-fourth thereof — in the lands on sec. 30 of which Shadwick died seized. The first tract contains sixteen, and the latter ninety-eight acres.
The judgment recovered in the circuit court for Rock county, by correcting the misdescription of the land on section 29 included in the mortgage, and by subrogating the plaintiff to the original rights of Priddeaux and the other creditors of the estate of Shadwick, whose claims were paid with the money loaned by the plaintiff to the Hammetts, rendered the mortgage of the plaintiff as broad and comprehensive in fact, as it was in terms and intent. The Hammetts assumed to mortgage to the plaintiff all of the land in controversy ón section 30, and attempted to mortgage that on section 29. The judgment carried out the manifest purpose and intention of the parties.
The plaintiff having an undoubted right of action in respect to some portion of the land when this action was commenced, no good reason is perceived why all of the rights of the parties [521]*521pertaining to all of the tax deeds and tax certificates may not be fully adjudicated in this action, although such rights may be affected by the judgment entered after this action was commenced. Those rights were determined by this court before the commencement of this action, the whole matter has been fully litigated, the court is in possession of all the facts, and it seems clear that the whole controversy may be disposed of in this action without injury to either of the parties. If the plaintiff is entitled to recover, it would be manifestly unjust to confine the relief awarded him to the land on section 80, and compel him to bring another action to get rid of the tax deeds of the land on section 29.
The case, in principle, may not be unlike an action brought to foreclose a mortgage given to secure a debt payable in installments. If no installment was due when the action was commenced, although one or more might become due before the trial, the action would necessarily fail. But if any sum, however small, was due at the commencement of the action, the plaintiff would be entitled to judgment of foreclosure and sale, not only for the amount so due, but for any amount which became due afterwards, and before the trial.
We are of the opinion that the action was not prematurely commenced, and, hence, that the plaintiff is in a position to demand a reversal or modification of that portion of the judgment from which he has appealed, if the same is erroneous.
II. Without discussing the point at length, we think that all of the defendants were chargeable with notice, through the whole time of the litigation of the plaintiff’s equities. His right, in some form of action, to be subrogated to the rights of Priddeaux and the other creditors of the estate, whose demands his money had paid, and to have the misdescription in his mortgage of the land on section 29 corrected, was perfectly apparent from the first'; and after the filing, in 1860, of notice of the pendency of the action brought to accomplish those results, no person could safely assume that the plaintiff had failed in [522]*522such action until an unreversed and a final judgment against him could be produced. The fact that the first decision of this court, in 1863, was adverse to the plaintiff, will, not aid the defendants. They are all chargeable with notice that when the conveyances were executed to Mr. Magoon, a motion for a rehearing of the cause was pending in this court.
In relation to the objection that the plaintiff was guilty of laches in allowing the cause to rest for five years in this court, it is only necessary to observe that the Hammetts and the other heirs-at-law of Shadwick, who were defendants in that action, could, at any term of the court during that time, have procured a dismissal of the motion, or could have compelled the plaintiff to submit it to the court for decision. Mr. Magoon was legally chargeable with notice of the status of the case, and should have required the defendants therein to take the steps above indicated before advancing his money on the faith of such first decision.
III. The judgment of the circuit court in this action is, that the tax deeds, so far as they relate to lands of which Shadwick died seized, are void, at least that they are void as to the plaintiff. This portion of the judgment is not appealed from. Hence we are to regard the $350.87, expended by Mr. Magoon in purchasing tax certificates, as a payment of taxes to that amount. This brings us to consider whether that portion of the judgment is erroneous which requires the plaintiff, as a condition precedent to obtaining the relief he seeks, to pay Mr. Magoon the amount paid by him for such certificates.
To determine this question, it is necessary to ascertain the precise circumstances or conditions under which Mr. Magoon paid his money for those certificates. We readily obtain this information from his own testimony, given on the trial. After stating that the deeds of November 2,1865, were executed to him as security for his advances to the Hammetts and for professional services, then amounting to $700, and that he paid immediately thereafter $294.55 for tax certificates, deeds, stamps, etc., and the [523]*523further sum of $56.32 for taxes subsequently accruing, he proceeded to testify^ as follows : “ November 2, 1865, when they made tbe deed to me, I agreed to pay the taxes which then remained unpaid, as follows: I told them I should pay the taxes then unpaid, and when they repaid me tbe taxes and ten per cent, interest thereon, including the other money due and interest, I would deed the land back. But if they never paid me, I should hold the title. This agreement, according to my understanding, includes all the taxes I have ever paid on the land.”
It necessarily results from the facts thus testified to by Mr. Magoon, that the deeds of November 2, I860, are mortgages, or perhaps, more correctly speaking, they together constitute a mortgage to secure the $700 which the Hammetts then owed Magoon, and also the $350.87 which the latter afterwards advanced for taxes. The learned circuit judge, in his findings of law, gave prominence to the fact that Magoon1 s security was in the form of absolute conveyances, and held that the plaintiff, having no knowledge to the contrary, had the right to consider Magoon as the owner of the equity of redemption, and primarily liable to pay the taxes. We see no good reason to question the correctness of such holding. But it is more favorable to. the defendants to treat such conveyances the same as though the Ham-metts and the other heirs-at-law of Shadwick had, instead thereof, executed to Magoon a mortgage upon the same land, in the usual form, to secure the payment of $1,050.87, containing a recital that $700 of the amount had already been advanced to. the mortgagors, and that the' balance was to be thereafter advanced by the mortgagee for the purpose of paying the taxes which had then accrued or might thereafter accrue on the mortgaged premises.
Were this a case wherein the second mortgagee had paid taxes which he was under no legal obligation, by contract or otherwise, to pay, but which he paid only to protect his security, we are not prepared to say that the judgment ought to be disturbed. In such case, it would be no more the duty of the [524]*524second than of the first mortgagee to pay the taxes, and perhaps equity would require the latter to reimburse the former, in whole or in part. But we do not here pass upon the relative rights and obligations of the first and second mortgagees in such a case, because we are satisfied that Mr. Magoon is not in a position to invoke in his favor this equitable rule, if it be a rule. It seems to us that, by his agreement with the Hammetts, Mr. Magoon took upon himself the duty and obligation of paying the taxes for the mortgagors, and that he is in no better condition to call upon the plaintiff to repay the amount than the Hammetts .would have been in had they paid the same out of their own funds. Stated in another form, we think that the transactions, in substance and legal effect, amount to a payment of the taxes on the mortgaged prerp-ises by the mortgagors (who, being the owners of the equity of redemption, and in actual possession of the land, were legally and primarily liable to pay the same), out of moneys loaned to them for that purpose by Mr. Magoon. The latter, doubtless, could be subrogated to the rights of the mortgagors in respect to such payment, but this would give him no remedy against the plaintiff.
IV. During the pendency of this action, the mortgaged premises have been sold and confirmed to the plaintiff, pursuant to the judgment of the circuit court for Rock county rendered in the former action, thus uniting in him the legal and equitable title. It is claimed that by operation of the doctrine of merger, the equitable title or lien of the plaintiff which he had when the tax certificates were purchased and the tax deeds issued thereon, has been destroyed, and that thereby the present action is necessarily abated. We do not so understand the doctrine of merger. Where the equitable and legal title become vested in the same person, if some other interest has intervened, there is no merger. Neither is there any merger where it is for the interest of the mortgagee that the estates be kept distinct' 2 Washburn on Real Property, 180. Here the interest [525]*525asserted under tbe tax deeds intervened before tbe legal title vested in tbe plaintiff, and was then outstanding, which prevents a merger. •
From the best consideration we have been able to give the case, we are impelled to the conclusion that the circuit court erred in requiring the plaintiff to refund to the defendant H. 8. Magoon the moneys paid by him for taxes on the premises described in the tax deeds.
The portion of the judgment appealed from must be reversed, and the cause remanded for further proceedings in accordance with this opinion.
By the Court. — It is so ordered.