Fond du Lac Harrow Co. v. Haskins

TayloR, J.

We think the demurrer should have been overruled. Section 3156, R. S., amongst other things, provides that “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 the mortgage is given to secure; and judgment of foreclosure and sale, and also for any such deficiency remaining after applying the proceeds of sale to the amount adjudged to be due for principal, interest and costs, may in such case be rendered.” The words above italicised are not found in chapter 243, Laws of 1862, nor in chapter 143, Laws of *137 1877, and were inserted by the revisors in the revision of 1878, and in some measure restrict the right to join parties to a foreclosure action, who are liable for the payment of the debt secured by the mortgage. The decisions heretofore made by this court under the law of 1862, may not, therefore, be conclusive in favor of the respondent in this case. See Burdick v. Burdick, 20 Wis., 348; Bishop v. Douglass, 25 Wis., 696; Merchants' Nat. Bank v. Raymond, 27 Wis., 567. Rut we are of the opinion that the facts in this case show that the appellant, Raskins, was personally liable for the debt secured by the mortgage given by his co-guarantor, Susanah Rowles; in the language of the statute, upon the same contract the mortgage was given to secure. If we treat the mortgage as given to secure the payment of the money which should become due to the plaintiff on his contract with S. N. Griffith, then the appellant stands in exactly the same relation to such contract as Susanah Bowles, the mortgagor; and if a judgment for a deficiency could go against her, then it can go against Raskins. But if there be any material difference, as is urged by the counsel for the respondent, between a condition in the' mortgage to pay any sum which may be found due to the plaintiff on its contract with Griffith, and a condition to pay any sum which may be found due to the plaintiff on her contract of guaranty, the latter condition would make fully as strong a case in favor of the right to join Raskins, her co-guarantor. If the mortgage be given to secure any money to become due from the mortgagor upon her written guaranty above set out, then it would be very clear that Haskins might be joined as one personally liable for the payment of the debt securgd by the mortgage, because, within the language of the statute, he is personally liable by reason of his guaranty for payment of such debt,-and is also so liable upon the same contract of guaranty the mortgage is given to secure.

The contract of guaranty is a joint as well as several contract. See Dart v. Sherwood, 7 Wis., 523. There is no force, *138 therefore, in the suggestion that, because the mortgagor gave the mortgage to secure the performance of her separate con-ti’aet of guaranty to the plaintiff, the liability of her co-guarantor was not a liability upon the same contract the mortgage was given to secure.

By the Goit/rt.— The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.