Allen v. Case

13 Wis. 621 | Wis. | 1860

By the Court,

P^jne, J.

We think tbe stipulation of tbe 29th of March, 1851, made in tbe foreclosure suit, was equivalent to an abandonment of tbe prior attempted service, and beginning anew. And from this it follows that tbe judgment under which tbe plaintiff in this suit claims title, was rendered before tbe foreclosure suit was commenced, the service of the subpoena being the time when the suit is to Ijq deerned ag commenced, so as to apply the rule of lis pen-dens. Murray vs. Ballou, 1 Johns. Ch., 576; Hayden vs. Bucklin, 9 Paige, 512; Miller vs. Kershaw, 1 Bailey Ch., 479; Fitch vs. Smith, 10 Paige, 9; Allen vs. Mandeville, 26 Miss. (4 Cush.), 397.

That being so, and the judgment creditor not being made a party to the suit, we think he was not prevented from pursuing his rights under the judgment, and that the purchaser under it would not be within the rule of lis endens. The question was considered in the case of Murphy vs. Farwell, 9 Wis., 102, and we shall only refer to the reasons there given in support of this position. One case has fallen under our observation, where the court seem to intimate an opposite doctrine. Kersey vs. Turbett, 27 Penn. St., 428. But the point was not thoroughly considered, and the court takes no notice of the distinction between a purchase in pursuance of a specific right, accruing before suit brought, and a mere voluntary purchase from a party to the suit, after it is brought. The facts in that case made it a purchase of the former kind, but the authorities referred to by the court relate entirely to purchases of the latter kind. And we see nothing in the case to induce us to change the view expressed in Murphy vs. Farwell.

We think, therefore, that the plaintiff had the right to redeem from the foreclosure sale, on paying the amount of the bid, with interest

The judgment must be reversed, with costs, and the cause remanded for further proceedings.

Since filing the foregoing opinion, the judgment of this court was set aside by stipulation, on account of some misunderstanding between counsel at the time the case was formerly submitted, and it was re-argued. After carefully reconsidering the positions above taken, we think them correct.

The counsel for the respondent contended that the doctrine of Murphy vs. Farwell would lead to a different result, and seemed to suppose that the decision in that case turned upon the point that the sale to Farwell was under a and paramount mortgage. It is true that fact is mentioned in the opinion, but the decision was not based upon that, but upon the fact that the sale took place in pursuance of an interest in the property, acquired before suit brought. It is obvious that this is equally as true of a second mortgage, or of a judgment lien, as of a first mortgage. And we think the owner of either, acquired before suit commenced, may, if not made a party, proceed to enforce his rights under his lien, without subjecting the purchaser at his sale to the rule of lis pendens, because some other person interested in the property may at that time have a suit pending in regard to it. The reasons for this conclusion are so fully stated in Murphy vs. Farwell, that we deem it unnecessary to add anything further.

Our opinion is also unchanged in respect to the time when, upon the record, the suit was to be deemed commenced. The parties stipulated that the service was to be set aside, and the subpoena dated as of that day. It would be difficult in the face of such a record, to assume that the subpoena was served before its date. It could only be done by disregarding the record which the parties stipulated should be made, and reaching beyond it after something by which to bring the purchaser within the rule of Us pendens. The authorities however are, that the proceedings are to be construed strictly in his favor. 10 Paige, 512.

The judgment is reversed, with costs, and the cause remanded for further proceedings.