Thompson v. Lyman

28 Wis. 266

• Court: Wisconsin Supreme Court
• Decided: June 15, 1871
• Status: Published

Opinion

Cole, J.

It is clear tbat tbew was no misjoinder of causes of action in tbe complaint. Tbe action is to foreclose a mortgage given to secure tbe payment of tbe purchase money of tbe premises mortgaged. Tbe notes accompanying tbe mortgage drew seven per cent, interest. It is alleged in tbe complaint tbat, after tbe execution of tbe mortgage, in consideration tbat tbe plaintiff would forbear suit on tbe notes and mortgage, tbe defendant Joseph A. Lyman agreed to pay ten per cent, interest on all sums after tbey became due.

It is said tbat tbis agreement to pay tbe extra three per cent, interest was a distinct and independent contract between tbe mortgagor and tbe mortgagee, not binding upon or in any way affecting tbe rights of Mrs. Lyman, and can only be enforced in a separate action against Joseph A. Lyman.

Tbis, we think, is an incorrect view of tbe matter. The contract to pay ten per cent, interest on all sums after tbey became due in consideration of plaintiff’s forbearing to bring suit, was clearly a valid, binding contract. Tbe mortgagor could bind tbe estate with tbis additional burden. Tbe wife has no ground to complain tbat tbis lien is imposed upon tbe land. For, as against tbe mortgagee and those claiming under him, it was not even necessary tbat she should sign tbe mortgage in order to bar any contingent right of dower in tbe premises. Sections 4 and 5, chap. 89, R. S. She would only be entitled to dower in any surplus tbat might remain after payment of tbe mortgage debt. Tbis being her only interest in tbe premises, we see no ground for bolding tbat tbe husband could not agree to pay tbe extra interest in consideration of tbe extension of tbe time of payment of tbe mortgage debt due, and bind tbe estate.

By the Court— Tbe order of tbe circuit court is affirmed.