Stellmacher v. Union Mortgage Loan Co.

219 N.W. 343, 195 Wis. 635, 1928 Wisc. LEXIS 182

• Court: Wisconsin Supreme Court
• Decided: May 8, 1928
• Status: Published

Opinion

Rosenberry, J.

A number of questions are raised. We shall deal with only one. Sec. 278.04, Stats., relating to foreclosure of mortgages, provides:

“In all such actions the plaintiff may in -his complaint unite with his claim for a foreclosure and sale a demand for judgment for any deficiency which may remain due to the plaintiff after sale of the mortgaged premises against every party who may be personally liable for the debt secured by the mortgage, whether the mortgagor or other persons, if upon the same contract which the mortgage is given to secure; and judgment of foreclosure and sale, and also for any such deficiency, . . . may in such case be rendered.”

It is clearly and definitely settled that at common law no personal liability could be enforced in an action to foreclose a mortgage and it can be now enforced only as provided by statute. Marling v. Maynard, 129 Wis. 580, 109 N. W. 537.

It appears from the allegations of the complaint that the liability of the Union Mortgage Loan Company if any is not upon the same contract which the mortgage was given to secure. Therefore the court had no authority to render judgment in this case against the Union Mortgage Loan Company. Furthermore, the pleadings do not support the judgment, and unless the judgment is supported by the pleadings it cannot stand. Fifield v. Marinette County, 62 Wis. 532, 22 N. W. 705. See Good v. Schiltz, ante, p. 481, 218 N. W. 727.

We do not find it necessary to consider other questions raised.

By the Court.- — Judgment for deficiency against the Union Mortgage Loan Company is reversed and cause remanded.