
    Tompkins vs. Halstead and wife, impleaded with others.
    Mortgaged property purchased, on foreclosure of prior mortgage, by third partyfor second mortgage debtor, to whom it is thereupon deeded, will still be held subject to the second mortgage.
    APPEAL from the Circuit Court for Rode County.
    Foreclosure of a mortgage on the west half and north-east quarter of a certain quarter section of land, executed by Cyrus Curtiss, April 13, 1855, to secure his note of same date. The complaint alleges that afterwards Curtiss sold the premises to the defendant Curtis Halstead, and executed a deed to him, or to Diana Halstead, his wife, or to some one for their benefit, which deed has never been recorded; that upon such purchase Curtis and Diana Halstead, or one of them, undertook and promised to pay the mortgage, as part payment of the purchase money for said land; that the north-east quarter of said quarter section had been mortgaged by Cyrus Curtiss to the state of Wisconsin before the execution of the mortgage in suit; that upon such purchase and sale of the premises, Curtis and Diana Halstead, or one of them, also promised to pay that mortgage, as part of the purchase money; that a certain sum was reserved from the purchase money of the premises by said Curtis Halstead, as an equivalent for said two mortgages; that in and by tbe conveyance from Gyrus Curtiss and wife to Ourtis and Diana Halstead, or one of them, tbe premises were subjected to tbe payment of both of said mortgage debts; that af-terwards, about December 26, 1859, Ourtis and Diana Halstead conveyed tbe premises to tbe defendant Oliver Ghatfield, and ip. and by tbeir deed to bim subjected tbe premises to tbe payment of both of said mortgage debts; that afterwards said Halsteads and Ohaifield neglected to pay tbe interest wbicb became due on tbe mortgage to tbe state, and tbe land was sold by tbe land commissioners; tbat thereupon Ghatfield and said Halsteads, or one of them, for tbe purpose of evading their agreement aforesaid, and in order to cut off tbe lien of tbe plaintiff’s mortgage from that part of tbe premises covered by tbe mortgage to tbe state, “ either procured one Chester Clark to bid off said premises at tbe sale of said lands in bis own name, but in trust for them, or for tbeir benefit or one of them, or they or one of them bid off said premises or procured them t@ be bid off at such sale in tbe name of said Chester Clark, for tbeir benefit or tbe benefit of one of them, and afterwards procured tbe same to be conveyed to said Chester Clark upon suck sale, by the proper officer * * but for tbeir use and benefit^ or tbe use and benefit of one of them, and tbat they or one of them furnished or procured to be furnished tbe money paid to tbe state upon such bid; and tbat afterwards, in disregard of these said undertakings, they, the said Halsteads and said Ghat-field, or one of them, procured said premises to be conveyed by said Clark to tbe defendant Diana Halstead.” Then follow the customary allegations and prayer.
    
      Ourtis Halstead and Diana Halstead demurred to tbe complaint as not stating a cause of action ; and appealed from an order overruling tbe demurrer.
    
      Todd & Converse, for appellants :
    Tbe complaint admits tbat title has passed from tbe state to one Clark. There is no allegation of fraud, no statement of facts authorizing relief against the deed, no demand to have it set aside. It appears from the complaint that the land is freed from the mortgage in suit by operation of the deed from the átate. 2. The assumption of the mortgage debt by Diana Hal-stead furnishes no ground of action. A married woman cannot contract except with reference to her separate estate. 3. An assumption of the mortgage debt by Ourtis Halstead cannot affect the title of Diana Halstead. The state passed the fee to her free from any liability on this - mortgage. Until the complaint shows on its face fraud or connivance on her part, it shows nothing to affect her title.
    
      K Mariner, for respondent.
   Cole, J.

The principal objection relied on in support of the demurrer, is the general one, that the complaint does not state facts sufficient to constitute a cause of action. It is an ordinary complaint to foreclose a mortgage. And we cannot see but that it contains all the allegations essential to maintain the action. It is said that it is admitted in the complaint that the title to the land embraced in the mortgage given the state, had, by the commissioners’ sale, become vested in one Chester Clark, and that there should be something to avoid the effect of this admission. It is alleged, in substance, that Clark bid in the premises at that sale in trust for and for the benefit of those defendants who had purchased the property of the mortgagor subject to the incumbrances, which they, or some one of them, assumed to pay; or that such defendants bid off the same in Clark’s name, and procured the conveyance to be made to him by the proper officer of the state, merely for the purpose of cutting off the lien of the mortgage sought to be foreclosed. This clearly shows that Clark’s purchase, being for the benefit of those defendants who had assumed both mortgages, was subject to the plaintiff’s rights. Besides, the mortgage to the state only embraced one forty, and if the effect of the sale under that mortgage was to bar the plaintiff’s rights to that forty, yet surely he is entitled to a foreclosure and sale of the residue of the land covered by his mortgage.

Again, it is assumed that the plaintiff is seeking to enforce some undertaking or agreement made by Diana Halstead, and it is said a married woman cannot contract except with reference to her separate estate. We do not think this question is before us on this appeal.

By the Court. — The order overruling the demurrer is affirmed.  