19 Wis. 459 | Wis. | 1865
By the Court,
Davenport R<pod conveyed the premises in dispute to John Liedburg, who 'executed a mortgage to Rood to secure the purchase money. Suit was brought to foreclose the mortgage in the circuit court for the county of Dane by Jesse Rhodes, the assignee of Rood, and he and Lied-burg were the only defendants to the action. There was no personal service on Liedburg, nor did he appear in the action^ and if there was any service on him at all, it was by the publication of an order for him to appear and plead. The record in this court shows neither the date of the order nor the time it was filed in the circuit court. The defendants in error, plaintiffs below, trace their title to the premises through the foreclosure decree and sale under it. It is insisted that the proceedings in that action are void, and we think they are as to the defendant Liedburg. The Revised Statutes of 1839, which the counsel for the defendants in error claim were in
But it is said, “ Concede that the foreclosure is defective, the plaintiffs below would be assignees of the mortgage interest of Rhodes, and as such could maintain the action of ejectment against Fladland." If we were to concede that a mortgagee, after the debt secured by the mortgage was past due, could maintain an action of ejectment to recover the mortgaged premises, it would not follow that the plaintiffs below could maintain this action. Rhodes was assignee of the mortgage before the foreclosure suit was commenced; and after he re
The judgment of the court below is reversed, with costs, and • a venire de novo awarded.