92 Wis. 557 | Wis. | 1896
This is an action of ejectment to recover possession of lots 1 and 2, in block K, of Rountree’s Eastern Addition to Platteville, commenced December 21,1893. The-plaintiff claims title under and by virtue of a judgment of foreclosure and sale of a mortgage covering the lots mentioned and other lands, executed by N. H. Yirgin and wife, January 19, 1881, to John Huntington, to secure the payment of $500 and interest, and which mortgage was duly recorded in the register’s office about the time it was so given. On the back of that mortgage there was an assignment of that note and mortgage to the plaintiff, executed by the executor of John Huntington, deceased, whose authority to act as such was duly proved. There is no question but what title was shown to be in N. H. Yirgin at the time of executing the mortgage. Some time prior to March 2, 1886, the plaintiff commenced an action in the circuit court for Grant county to foreclose that mortgage against N. H. Yirgin, Emma Y. Laughton, and Jonathan Evans, as as-signee of Isaac Hodges. The several defendants each made default, and the cause was referred, to ascertain and report the amount due. The referee reported, and the report was confirmed March 2,1886, and thereupon the usual judgment of foreclosure and sale was rendered by the court and entered of record. The defendants in such foreclosure having failed to redeem, the two lots mentioned were sold to the plaintiff on such foreclosure sale, and such proceedings were had thereon that September 23, 1893, a sheriff’s deed, duly executed, was issued thereon to the plaintiff of all the interest which N. H. Yirgin and wife had in the two lots mentioned at the time of executing the mortgage, and the sheriff’s report of sale was confirmed by the court November 2, 1893.
At the close of the trial the court found as matters of fact, in effect, that the plaintiff had been the owner in fee and entitled to the possession of the two lots mentioned ever-since November 2, 1893, and that ever since that time the defendant had unlawfully withheld the possession, to the plaintiff’s damage in the sum of $7.25, and that the allegations of the answer were untrue. As conclusions of law the-court found that the plaintiff was entitled to the relief demanded in the complaint, and to judgment establishing her-right to the possession, and for damages and costs. ' From, the judgment entered thereon accordingly the defendant brings this appeal.
Both parties claim title from N. H. Yirgin. It will be observed from the foregoing statement that the plaintiff in the
1. The principal objection to such foreclosure proceedings is that no “ notice of the pendency of the action ” was filed in the register’s office as required by the statute. S. & B. Ann. Stats, sec. 3187. That statute declares, in effect, that in an action “ for the foreclosure of a mortgage, such notice must be filed twenty days before judgment, and must contain the date of the mortgage, the names of the parties thereto, and the time and place of recording the same. . . . From the time of such filing . . . the pendency of such action shall be constructwe notice thereof to & pwchaser or incumbrcmcer of the property affected thereby.” The failure to file the notice as thus required was undoubtedly an irregularity which would have reversed the judgment had there been an appeal therefrom. Flood v. Isaac, 34 Wis. 423. The manifest object of the statute is to provide constructive notice to any purchaser or incumbrancer of the property affected thereby. Where such purchaser or incumbrancer has actual notice, he cannot be prejudiced by such omission; nevertheless, the omission is an irregularity. Accordingly, it has been held that where a defendant in ejectment conveys the land in controversy, pending the suit, to one having full knowledge thereof, although no notice of lis pendens was filed, such grantee takes subject to the litigation, and can avail himself of no statute of limitations which was not available to such original defendant. Wis. Cent. R. Co. v. Wis. River L. Co. 71 Wis. 94. Since the mortgage was recorded long prior to the attachment suit, it is manifest that
True, the statute required the notice of Us pendens in the foreclosure suitto.be filed twenty days before the judgment, but that did not prevent the court from tailing jurisdiction, either of the parties to that action or the subject matter of that action; nor did it deprive the court of jurisdiction to enter judgment in that action. This court has expressly held that a judgment of foreclosure of a mortgage, entered without proof of the filing of such notice, is irregular, but not void; and a motion to vacate it on that ground must be made at the same term. McBride v. Wright, 15 Wis. 306. Here the attack is entirely collateral to the foreclosure action, and hence could only be successful on the ground that the court was without jurisdiction to render judgment in that action. But the court did have jurisdiction, and hence the judgment, as here presented, cannot be treated as a nullity.’ -
2. Counsel cite the statute which declares that, “a judgment or decree affecting real estate shall only be a lien from
We perceive no error in the record.
By'the Gourt.— The judgment of the circuit court is affirmed.