McLean v. Hoehle

98 Wis. 359 | Wis. | 1898

MaRshall, J.

The sole question raised on this appeal is, Did the payment by Edgar C. Mehan as subsequent mortgagee, to the sheriff who made the foreclosure sale, of the amount called for by the certificate of sale on such foreclosure, entitle him to a deed to complete such sale, conveying to him all the right, title, and interest which the makers •of the first mortgage had at the time of the execution thereof, thereby extinguishing all further claim under such first mortgage? That question must be answered in the ■affirmative on the plain, unmistakable meaning of the statutes governing the subject, as they existed when the proceedings in question were had. Sec. 3533, R. S. 1878, then provided that the mortgagor, whose lands were sold on the foreclosure of a mortgage by advertisement, might, within ■a time stated, redeem the same by paying to the purchaser, his executors, administrators, or assigns, or to the sheriff, under-sheriff, or deputy sheriff, who made the sale, the sum of money bid therefor, together with interest on such sum, as therein prescribed, whereupon the sale and certificate of sale should be void. Sec. 3534, R. S. 1878, provided that if redemption wTere not so made, the officer, or his successor in office, or other person who made the sale, or his executor or administrator, or some person apjminted by the circuit •court for the purpose, should complete such sale by executing a deed of the premises to the original purchaser, his as-signee or personal representatives, or to any subsequent mortgagee who may have redeemed the same as provided in sec. 3540. The last-named section provided that any subsequent mortgagee might redeem the mortgaged premises the same in all respects as the mortgagor, in case of the latter’s failure so to do. Defendant having exercised such right of redemption under sec. 3540, was entitled to a sheriff’s deed under the first-mentioned section, by the express wording thereof. The right to the deed being given, and there being no provision to the contrary, it necessarily carried with it the same title to the subsequent mortgagee as if it were made to any one claiming under the certificate of sale, i. e., all right, title, and interest in the premises covered by the first mortgage. The deed effectually extinguished all further claim under such mortgage.

'It is needless to discuss the subject of whether the foreclosure was of an indebtedness constituting a separate and distinct mortgage under sec. 3525, E. S. 1878, for if such were the case, there being no stipulation In the mortgage securing the instalments of indebtedness equally, the different instalments took precedence in the order they fell due; and a foreclosure under a prior instalment, completed by the execution and delivery of a deed, cut off all claims under subsequent instalments, the same as the foreclosure of any prior mortgage cuts off all claims under subsequent mortgages. Pierce v. Shaw, 51 Wis. 316.

No injustice is perceived because the statute leads to the result above indicated, as the first mortgagee had ample opportunity to protect himself by bidding the property, at the sale, up to a fair value; but if it were otherwise, the wisdom of the statute is not a matter for this court to determine.

By the Court.— The judgment of the circuit court is affirmed.