This is an action by the respondent to recover damages for trespass upon real estate claimed to be owned by her. The defendants 'answered by a general denial, and by setting up title in Mary W. Marshall to the real estate upon which the plaintiff alleges the trespass was committed. The plaintiff had judgment upon a trial in the circuit court by the court without a jury. From such judgment the defendants appealed to this court.
i, The only questions to be determined by this court upon this appeal are whether the plaintiff gave sufficient evidence of her actual possession of the real estate upon which the alleged trespass was committed, or, if she failed in that respect, whether she established her title to such real estate as against the defendants. If she gave sufficient proof in the case to show her actual possession of the premises in controversy at the time when the alleged trespasses were alleged to have been committed, then she made out her action against the defendants, such actual possession being evidence of title unless they established a title to such premises which was a better and paramount title to that of the plaintiff.
The facts of this case are not very plainly stated in the case or in the brief for the appellants, and we have been compelled to examine the record in the case for the purpose of ascertaining the real position and rights of the parties as between themselves at the time of the alleged trespasses. From such examination we find the record discloses the following facts:
In 1819, and previous thereto, the land in controversy was owned by one John E. Cole; that previous to 1879 Cole and his wife had given a mortgage thereon to a person by the
The plaintiff commonced her action to foreclose the mortgage for $1,700, so assigned to her to secure the payment of the $1,000 and interest, in 1881, and on November 26, 1881, a lis -pendens was duly filed in said action, and C. F. Kalk was made a party to such foreclosure action at the time of the commencement thereof. After the commencement of this action, and before judgment therein, on the 1st day of February, 1882, C. F. Kalk and wife executed a deed of the lands in question to Charles H. Marshall, which was recorded about that date. May 8, 1883, Marshall and wife executed a deed of the same lands to one Neeb, and on May 26, 1883, Neeb executed a deed of the same lands to Mary W. Marshall, the wife of said Charles H. After the deed was made by Kalk and wife to Charles H. Marshall, February 1, 18S2, it is claimed by the plaintiff that the foreclosure action was amended, and said Charles II. Marshall was made a party defendant therein, and that he appeared
It also appears that while the plaintiff’s action to foreclose the $1,700 mortgage assigned to her was pending, C. F. Kalk had also commenced an action to foreclose his subsequent mortgage on the same lands, and that in such foreclosure action he had obtained an order appointing a receiver therein of the mortgaged premises. When this action was commenced does not appear, but it sufficiently appears that such action was pending and the receiver had been appointed before C. F. Kalk and wife conveyed the land to Charles H. Marshall, February 1, 1882. It also appears that a stipulation was made and filed in the plaintiff’s foreclosure action, of which the following is a copy:
“In Circuit Court, Fond du Lac County.
“ Semira P. Newton vs. John R. Cole, Adelaide Cole, C. F. Kalk, Maria Kalk, Columbus Smith, and C. H. Marshall.
“ It is hereby stipulated that the defendant 0. E. Kalk withdraw that portion of his counterclaim in the above action which sets up, or seeks to recover, a claim for money advanced by him for the use and benefit of the plaintiff in and about repairing, fitting up, and improving the homestead and grounds of the plaintiff, and that the plaintiff may enter judgment for the amount due upon the note and mortgage described in the complaint, with a proviso in said judgment that the said C. H. Marshall, his heirs or assigns, shall have the right to purchase said judgment, or to redeem the premises from the same, upon the payment to the plaintiff, or her attorney, within the time of redemption allowed by law, the sum of $1,000, with interest thereon at ten per cent, from June 10, 1879, less the sum of $100 paid thereon November 19, 1880, and $50 paid October 4, 1881, together with the costs of action; and that, upon said payment being made, the said plaintiff be compelled to assign and transfer such*12 judgment to said C. H. Marshall, his heirs or assigns, on demand.
“ Dated March 1, 1882.
“ E. S. Bragg, Attorney for Defendants C. F. Kalk and C. H. Marshall.
“ A. M. Blair, Attorney for Plaintiff.”
On the 21st of March, 1882, final judgment was entered in said action, which contained the proviso stipulated for by the defendants. The premises, not having been redeemed by any one, were sold upon this foreclosure judgment, and purchased by the plaintiff herein May 10, 1883, and such sale was confirmed May 22, 1883. After the foreclosure sale, aud after the deed from Neeb to the defendant in this action, Mary W. Marshall, was executed, she took possession of said mortgaged premises, apparently claiming title under such deed. On the 31st day of May, 1883, the plaintiff in the foi'eclosure action obtained from the court a writ of assistance to remove the said Mary W. Marshall from the possession of said premises, and on the 2d day of June, 1883, such writ was executed, said defendant was removed, and the plaintiff put in possession thereof. After being so removed from the possession of said premises, the defendants, on different days between the 2d and 11th days of June, 1883, again entered upon said premises with their cattle and horses, and depastured them thereon, and for these acts, committed between said 2d and 11th days of June, 1883, this action was brought. The plaintiff recovered judgment and the defendants appeal to this court, and claim that the judgment should have been in favor of the defendants, because it is insisted they showed upon the trial a title in fee in Mary W. Marshall to the lands upon which the alleged trespasses -were committed, by virtue of the two tax deeds" issued to C. K. Pier in 1880 and 1881, and by conveyance from Pier to C. F. Kalk, Kalk to Charles H. Marshall, Charles H. Marshall to Neeb, and from Neeb to said Mary W. Marshall.
But there is another thing which appears in the record of the foreclosure action which is a perfect bar- to any claim which Kalk might undertake to assert by virtue of his purchase of the tax titles from Pier. He signed the stipulation above set forth authorizing Mrs. Newton to take judgment against him, as a defendant in such foreclosure suit, for the whole amount of the mortgage, and to sell the premises to pay the whole amount due thereon, more than a third of which would be due to himself had the mortgaged premises been of sufficient value to pay the whole amount due on the mortgage, with a stipulation in favor of his grantee, Charles H. Marshall, giving him the right to an assignment of the judgment to him upon his paying the sum of $1,000, and interest thereon as stated in such stipulation. This act is
Without stopping to consider the question whether he can be permitted in this collateral action to controvert the record in the foreclosure action by showing that the court never in fact obtained jurisdiction of his person therein, and admitting that he was not properly made a party to the action, still he obtained his conveyance from Mr. Kalk and wife, who were parties to the action, pendente lite and long after a lis pendens was duly filed therein. And if not a party to the action, having taken his conveyance from Kalk and wife during the progress of the action to which they were parties, he is concluded by the judgment in the action in the same manner and to the same extent that his grantors, Kalk and wife, are concluded. Sec. 3187, R. S. 1878; Warner v. Trow, 36 Wis. 195, 200. For the purposes of this action, therefore, it is wholly immaterial whether Charles H. Marshall was a party to the foreclosure action or not. Having taken his title from parties to the action after th§ lis pen-dens was filed therein, he is bound by the judgment in the
It is also objected by the appellants’ counsel that the plaintiff did not show title to the lands upon which the alleged trespasses were committed. She established the fact that she was put into the actual possession of the premises under the foreclosure judgment and sale, and being so in possession, so far as these defendants are concerned, standing in the same situation as the parties defendant in that action stand, such possession of the plaintiff must be deemed a lawful possession, and she cannot be lawfully ousted therefrom except by some person who can establish a better title; and, as we have seen, this the defendants failed to show on the trial.
Having considered the case upon the merits of the title claimed by the defendants, it is unnecessary to determine whether a party to a foreclosure action, or one who stands in the situation of a party, and who has been turned out of the possession of the mortgaged premises upon a writ of assistance in favor of the purchaser, can thereafter enter upon such premises under claim of title paramount and superior to the title of the purchaser at the mortgage sale, and defend such entry, if an action of trespass be brought against him by the purchaser so put in possession, by proving his title in such action; or whether he must resort to an action of ejectment to oust the purchaser put in possession by such writ.
It is urged by the counsel for the appellants that the plaintiff, in her complaint in the foreclosure action, admits that the defendants therein, Kalk and Marshall, had a title or claim upon the mortgaged premises which was superior to
By the Court.— The judgment of the circuit court is affirmed.