#### Straight vs. Harris and others.

A party who is made defendant to a foreclosure suit under a general allegation merely that he claims an interest in the mortgaged premises, which interest, if any, accrued *subsequently*to the mortgage sought to be foreclosed, and against whom judgment of foreclosure is taken by default, is not barred by such judgment from bringing suit to foreclose a prior mortgage held by him on the same premises.

The recording of a *subsequent*mortgage is not notice to a prior mortgagee, so as to bring him within the operation of the equitable rule which would preclude him, after notice, from releasing any part of the premises coYered by his mortgage and then enforcing his lien on the remainder to the injury of the second mortgagee.

APPEAL from the Circuit Court for *Richland*County.

This was an action to foreclose a mortgage executed by the defendant *Harris*to the plaintiff, January 10th, 1857, to secure the payment of $185.41, payable four months after date, with interest at 12 per cent. The land originally covered by the mortgage was the S. E. qr. of the S. E. qr. of sec. 8, and the S. W. qr. of the S. W. qr. of sec. 9, in town 10, in *510Eichland county. Tbe complaint states that in considera-of tbe payment of interest on tbe mortgage debt to Sep-tember 19, 1858, and of $42.93 of tbe principal paid De-cember 24tb, 1857, tbe plaintiff released from the lien of tbe mortgage tbe S. W. qr. of tbe S. W. qr. of sec. 9 aforesaid; that there was due on tbe mortgage $92.50, with interest at 12 percent, from September 19, 1858; that tbe defendants *C. W.*and *Eliza Huntington, Haseltine*and *Jamiey*bad or claimed some interest in or lien upon tbe mortgaged premises, which had accrued subsequently to tbe lien of tbe plaintiff’s mortgage. Prayer, that all the defendants might be barred and foreclosed, &c.

Tbe defendant *Harris*answered, alleging tbe pendency in tbe same court, at tbe time of tbe commencement of this action, of another action for the same cause and between tbe same parties plaintiff and defendant. Tbe defendant *Hasel-tine*answered alleging among other things that on tbe 19th of September, 1857, *Eliza*Huntington, who was then tbe owner of tbe east half of the S. E. qr. of sec. 8, and tbe N. W. qr. of tbe S. W. qr. of sec. 9 in town 10 in said county, executed to one *Sarah Harris*a mortgage upon tbe same land to secure a debt of $1200, which mortgage was recorded October 23d, 1857, and was assigned to tbe defendant *Haseltine*for value, and tbe assignment recorded November 13th, 1857; that there was then due or to become due on said mortgage $1361; that tbe land covered by tbe mortgage was not worth that sum; that tbe release executed by tbe plaintiff of tbe S. *W.*qr. of tbe S. W. qr. of section 9, was made subsequent to the recording of said assignment ; and tbe land so released was worth $500. Tbe defendant demanded judgment that tbe plaintiff be required “ to deduct from bis mortgage tbe value of tbe said S. W. qr. of tbe S. W. qr. of section 9,” &c.

Tbe defendant *Haseltine*afterwards filed an additional answer, alleging that after tbe commencement of this action, to wit, November 17th, 1859, he had obtained in said circuit court, in an action brought by him against *Eliza Huntington, G. W. Huntington,*said *Straight*and others, a decree for tbe foreclosure of tbe mortgage givenby said *Eliza,*men*511tioned in bis first answer; that in said action said *Straight*bad been personally served with a summons more than ninety days before tbe commencement of tbe term of court at which said decree was rendered; and that by said decree, said *Straight,*and all persons claiming under him, &c., bad been barred and foreclosed of all equity of redemption in tbe said mortgaged premises.

On tbe trial, tbe plaintiff and tbe defendant *-Haseltine*introduced evidence sustaining tbe allegations of tbe complaint and answer, except as to tbe value of tbe land released by tbe plaintiff from tbe operation of bis mortgage, which was shown to be between three and four hundred dollars. The complaint in tbe action of *Haseltine vs. Eliza Huntington and others*(which was a part of tbe record introduced in evidence by tbe defendant *Haseltine*to sustain his additional answer), alleged, among other things, that said *Straight,*one of tbe defendants therein, claimed an interest in the premises covered by the mortgage sought to be foreclosed in that suit, and that such interest, if any, accrued subsequently to tbe date of that mortgage. '

The court found that the plaintiff, at tbe time of releasing tbe forty acres from bis mortgage, bad no, knowledge of tbe existence of any subsequent mortgage, and rendered a judgment of foreclosure and sale of the A E. qr. of the S. E. qr. of section 8, to satisfy tbe plaintiff’s claim of $113 38 and costs; from which *Harris*and *Haseltine*appealed.

The record contains a certificate of tbe circuit judge before whom tbe case was tried, that it appeared from tbe testimony that before the commencement of the suit, a suit for the same matter had been commenced by the plaintiff; that notice of discontinuance of said suit bad been served upon the defendant therein; but that no order of dismissal of said cause bad ever been obtained from the court.

*Eastland & Eastland,*for appellants:

1. An action regularly commenced cannot be dismissed or discontinued except by order of court. 2. *Haseltine*was entitled to have the value of tbe land released by *Straight,*deducted from the amount of *Straight's*mortgage, before the hen of the latter was enforced upon tbe remaining land coy-*512ere^ *■^■ase^ne's*mortgage. 2 Kinney’s Compendium, 95, 188 ; 1 Story’s Eq. Jur., § 688 ; 9 Wis., 54 8. *Straight,*having been made a defendant in tbe foreclosure of *Hasel-tine’s*mortgage, and personally served with summons, was bound to appear and disclose bis equities, that tbe court might protect them. Having neglected to do so, and bis equities having been foreclosed in that action, be cannot now maintain an action on bis prior mortgage. 1 Wis., 631; 5 id., 154; 4 id., 43. Tbe owners of tbe equity of redemption can be charged with but one bill of costs. 3 Paige, *509;*2 Wis., *306;*5 id., 154. Tbe decree in that action vested in tbe purchaser tbe whole interest of tbe defendants therein. 6 Wis., 257. *Straight,*in not defending in tbe foreclosure suit brought by *Haseltine,*was guilty of *laches,*and should not be relieved. 8 Wis., 277; 4 id., 40-43 ; 6 id., 257-60.

*Priest & Miner,*and *Smith & Keyes,*for respondents: •

Tbe recording of a subsequent mortgage is not sufficient notice to a prior mortgagee. 2 Barb. Ch. R., 151; 6 Paige, 35; 8 id., 277; 1 Johns. Cb. R, 414';' 4 Yes., 389; 1 Sch. & Lef., 90; 10 Ohio, 80.

December 11.

*By the Court,*

Colb, J.

It is very clear that tbe judgment of foreclosure in tbe case of *Haseltine vs. Harris, Straight et al.,*did not bar or cut off tbe respondent’s rights under bis prior mortgage. Eor although be was made a party to that suit, it was for tbe express purpose of cutting off any claim which be might have in tbe mortgaged premises accruing subsequently to tbe date of tbe mortgage in that suit. Tbe complaint in tbe suit of *Haseltine vs. Harris, Straight et al.,*alleges that *Straight*and others therein named claimed to have an interest in tbe mortgaged premises, but which claim, if any, accrued subsequently to tbe mortgages therein foreclosed. *Straight*entered no appearance in that case, but let judgment go by default. What then was tbe effect of that judgment so far as be was concerned ? Simply to bar any right or claim which be might have in tbe premises, accruing subsequently to tbe Huntington mortgage. But clearly it could not bar and cut off bis rights under a mortgage prior *513and paramount to that mortgage. This point was directly adjudicated in tbe case of *Strobe vs. Downer,*recently ded in this court. 13 *Wis.,*10. That was an action to foreclose a mortgage, to which Downer, as assignee of a subsequent mortgage, was'a party. He claimed that Strobe’s interest in the mortgaged premises had been barred and cut off in a previous suit instituted by him to foreclose his mortgage, to which suit Weimar, the assignor of Strobe, had been made a party. It appeared that the assignment of the first mortgage had never been recorded, and that when Downer took the assignment of the second mortgage, he supposed that the prior incumbrance had been paid off and discharged. In the Downer suit a printed blank had been used for the complaint' in which, after stating that Weimar claimed an interest in the premises, the claim that such interest accrued subsequently to the mortgage sought to be foreclosed, was erased. The case was considered in the same light as though Weimar had never assigned his mortgage. Anri we held that although he had been made a party to that suit, yet as his right was prior and paramount, it was not affected or barred by the proceedings in the Downer suit. It would certainly be strange and extraordinary doctrine, to say that a judgment of foreclosure barred and cut off rights under a prior mortgage, when the holder of such prior mortgage did not appear in the action, and when the complaint alleged that he was a subsequent incumbrancer," and proceeded against him as such. In no possible view of the case can any such effect be given to the judgment in the case of *Has-eltine.vs.*Harris, *Straight et al,*as claimed for it here. It could not affect rights accruing under prior liens. That judgment may well be held to bar and cut off the claims of all parties defendants whose rights in the mortgaged premises accrued subsequently to the mortgage there foreclosed, but can have no wider application. See the authorities cited in *Strobe vs. Downer,*where this question is fully discussed.

Another question presented is as to the effect of the release of a portion of the mortgaged premises by *Straight.*It is contended that the holder of the second mortgage was great*514ly prej ucliced by this release, and tbat where this is the case, rule in equity is, that a prior mortgagee will not be permitted to charge other portions of the premises with the debt, without deducting the value of that part released. This may be the rule where the prior mortgagee releases with notice of the subsequent incumbrance. It is not pretended that *Straight*had any actual notice of the existence of the subsequent mortgage, and we have recently decided in *Deuster vs. McCamus*[ante, p. 307], that the recording of a subsequent mortgage was not a sufficient notice to a prior mortgagee, who releases a portion of the mortgaged premises, to bring him within the operation of the equitable rule just cited. Had it appeared that Straight, when he executed the release, had notice of the existence of the Huntington mortgage, the rule would have applied.

This disposes of all the material questions in the case.

The judgment of the circuit court is affirmed.