Hitchcock v. Merrick
Wisconsin Supreme Court
APPEAL from the County Court of Milwaukee County. In 1857, the defendant, Merrick, executed a mortgage to one William R Hitchcock, to secure the payment of $11,359.80 in three years, with interest. Said mortgage contained a covenant by the mortgagor to pay “all taxes and assessments of every nature that might be assessed upon the premises described therein, previous to the day appointed, in pursuance of any law of this state, for the sale of land for taxes.”
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APPEAL from the County Court of Milwaukee County. In 1857, the defendant, Merrick, executed a mortgage to one William R Hitchcock, to secure the payment of $11,359.80 in three years, with interest. Said mortgage contained a covenant by the mortgagor to pay “all taxes and assessments of every nature that might be assessed upon the premises described therein, previous to the day appointed, in pursuance of any law of this state, for the sale of land for taxes.” Before the mortgage debt became due, the mortgagee died, and the plaintiff, Thomas Hitchcock, as one of his legatees, became the lawful…
1Opinion of the Court
By the Court,
DixoN, C. J.
The counsel for the plaintiff *361correctly observed that this is a case of the first impression, and our impression is decidedly against him. We do not think that there can be an action upon the covenant of the mortgag- or to pay taxes after the extinguishment of the mortgage. On the contrary, we fully agree with the counsel opposed, that the covenant is collateral and subordinate to the debt, and that when the debt is extinguished the covenant can serve no further purpose. It is in the nature of an additional security for the payment of the debt — a provision inserted…
2Cases cited2 opinions
- Mowry v. WoodWisconsin Supreme Court · 1860
- Ainsworth v. BowenWisconsin Supreme Court · 1859
3Cited by12 opinions
- Wyoming Building & Loan Ass'n v. Mills Const. Co.Wyoming Supreme Court · 1928
- Tobin v. TobinWisconsin Supreme Court · 1909
- Johnson v. PayneNebraska Supreme Court · 1881
- Commercial Building & Loan Ass'n v. RobinsonCourt of Appeals of Maryland · 1900
- San Mateo County Bank v. DupretCalifornia Court of Appeal · 1932
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