Dissenting. It seems to me that the question involved in this case has already been adjudicated upon and settled in this court. And after the rigid application of the doctrine of res adjudícala, which we have made at this term to cases already disposed of, I do not feel at liberty to make the present case an exception in the application of that doctrine ; even if I did not in all respects concur in the views previously expressed in the opinion reported in 2 Wis., 539. It is unnecessary to state at length the bill filed by Murphy. The substance is contained in the opinion of Justice Crawford just referred to. It is a bill for an account on the part of Far-well, of the rents and profits received by him while in pos*111session, of the premises in controversy, to pay off and redeem the Severn mortgage; and that Farwell be compelled to surrender the possession of the premises, and to execute and deliver to Murphy a good and sufficient conveyance of an undivided half of lots one and three. The idea, object, aim and end of the bill, if I can understand it, is to discharge an encumbrance against the property, so that Murphy might become the owner of an indefeasible and absolute estate in fee simple, of the premises. It is such a bill as a person having the equity of redemption in a subsisting estate has a clear right to file, to discharge the property from an encumbrance outstanding against it.
To this bill a special demurrer was interposed, assigning several causes of demurrer. If any one is curious enough to look into that demurrer, he will see that the demurrants understood this bill precisely as I do. And in resisting the object of the bill, in the 8th ground of demurrer, the point is distinctly and clearly made, that Murphy had shown in “ his bill of complaint, that Farwell and Cady had a right to the equity of redemption in the premises prior to his own.”
The circuit court overruled the demurrer, as to all the points taken in it, and that decision this court affirmed in every particular. So that whatever points were taken in that demurrer, were distinctly, squarely and fully presented to this court and held to be insufficient in law. It is suggested now that in the previous decision, this court only decided that Murphy might pay off or redeem the Severn mortgage, but did not decide that he could redeem the property and perfect the title in himself.
It is said that Farwell must be considered as at once a mortgagee and mortgagor, uniting in himself the rights and obligations of a mortgagee under the Severn mortgage, and the rights and obligations of a mortgagor by operation of law under the chancery sale. This is certainly a cast of charac*112ters not often found in the books, that the same person, at the same time, should be a mortgagor and mortgagee. But with this I have nothing to do. I do not find any such intimation, or idea, or suggestion, advanced in the opinion of the court. Besides, no such point was presented for the consideration of the court. The bill is not formed with any other aspect than to redeem the premises. That is the principal relief asked for, and as incidental to this, an account is demanded. And it is said by very high authority, that no person, except a mortgagor, his heirs or privies in estate, has a right to redeem or to call for an account, unless it can be shown that there is collusion between them and the mortgagee. Troughton vs. Binkis, 6 Ves., 572; White vs. Parnther, 1 Knapp, 229 ; 2 Story Eq. Jur., § 1023.
The demurrer raised the point distinctly, as to whether, by the bill, it did not appear that Farwell had a prior equity of redemption in the premises. The court overruled the demurrer, thus saying that he had not. Furthermore, the court says: “ Inasmuch as the bill before us states that at the time of the prior foreclosure proceedings Murphy was the assignee of the second mortgage, having a claim to the equity of redemption of the first mortgage, which was known to all the parties, and was not brought in, his rights remain unimpaired by the proceedings to which he was not a party, and we think he may well insist upon redemption at any time within the period of limitation, when he has not been foreclosed, (p. 539.) Again, “ From the best examination of the case in all its bearings, which we have been able to give it, we cannot perceive why the present complainant is not entitled to redeem the portion of the premises purchased by Mr. Farwell, which was embraced in the sale, on the second foreclosure,” &c. (p. 540.)
If by this language the court is to be understood as saying that by the prior foreclosure proceedings, Murphy, who had *113a claim to the equity of redemption of the first mortgage, had not the right to redeem that portion of the premises purchased, by Farwell, and had no right to disengage the property from all encumbrance and perfect the title in himself, but only had, the right to buy in the Severn mortgage, so as to become the holder of the two mortgages, then I despair of ever ascertaining the point decided in any case. But really, if the object and purpose of the bill are looked at, if the points raised by the special demurrer, are regarded, if the questions discussed by counsel, and necessarily considered by the court, do not show that this court then really and truly held, that under the facts and circumstances of the case, and the peculiar relations of the parties, Farwell and Murphy had a mutual and reciprocal right to redeem the premises, discharge all encumbrances, and become the owner of an absolute estate in fee simple; I think it may be safely said it never decided anything. And, if it did decide this, if it held that Murphy had a right to redeem the premises and perfect the title in himself, and that Farwell at the commencement of the suit, had the same right, then I understand my brethren to admit that Murphy, by his superior diligence, has acquired the stronger equity and should now be permitted to redeem the property.
As I have already said, whether the view taken of the case when before the court at the former hearing, be correct or not, I am not now disposed to discuss. Within the decisions made, at this term, that is not an open question, I therefore dismiss the case without further remark, simply adding, that in my opinion, the judgment of the circuit court was directly opposed to the previous decisions of this court, and the prior equitable rights of Murphy, and should be reversed.