#### Thompson vs. Lyman and another.

*Mortgage for purchase money; rights of the wife.*

1. In case of a mortgage hack of land to secure payment of purchase money, the wife of mortgagor need not execute the instrument in order to bar her right of dower as against the mortgagee and those claiming under him.

2. In case of a foreclosure and sale, the wife’s right of dower would attach only to the surplus after payment of the mortgage debt.

3. .In such a case, where the wife had joined in the mortgage, the husband might agree to pay a higher rate of interest in consideration of an extension of- time; and the mortgage may be foreclosed against, both, for interest accrued at such increased rate, and a personal judgment taken against him for any deficiency, in the same action.

APPEAL from tbe Circuit Court for *Fond du Lac County.*

Action against *Joseph A. Lyman*and *Mary 0.*Lyman, bis wife, to foreclose a mortgage executed by tbem to secure payment of certain notes given by *Joseph A. Lyman*for tbe purchase money of tbe land mortgaged. Tbe complaint, in describing tbe notes, avers tbat thereby said *Joseph A. Lyman*promised to pay certain specified sums at certain dates named, “with interest on all said sums annually.” After alleging default of payment, tbe complaint claims tbat there is due on said notes and mortgage tbe principal named in eacb of tbe unpaid notes, with interest tbereon *at ten per cent.]*and it demands judgment of foreclosure and sale for tbe amount tbps .alleged to be due, and a personal judgment for any deficiency against *Joseph A. Lyman.*Tbe defendants demurred separately, on tbe ground (among others) tbat several causes of action bad been improperly united. Tbe demurrer was overruled; and tbe defendants appealed.

*Gerrit T. Thorn*and *N. S.*Gilson, for appellants.

*J. M.*Gillet, for respondent.

Cole, J.

It is clear tbat tbew was no misjoinder of causes of action in tbe complaint. Tbe action is to foreclose a mort*267gage 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.