18 Wis. 222 | Wis. | 1864
By the Court,
This was an action to foreclose a mortgage, and some of the defendants, who were proceeded against only as persons having some claims in the premises subsequent and subject to the,mortgage, answered setting up a paramount title. This was demurred to, and the demurrer overruled, improperly as we think.
A person made a party to a foreclosure suit, merely to bar any interest which he may claim subsequent and subject to the mortgage, if he claims no such interest, has no right to insist on setting up and trying in that suit a claim of paramount title. The two things are incongruous and ought not to be mixed together.
And though the respondent’s counsel seems to think that our statute, contrary to all previous practice on the subject in this state or elsewhere, designed to mingle all possible claims to the land in a foreclosure suit, yet we can discover no sufficient evidence of such a design. He relies upon section 6, chapter 134, R. S. 1858, as producing this result, because it provides that the conveyance executed by the sheriff or referee “ shall be effectual to pass the rights and interests of the parties in the property adjudged to be sold.” It is claimed that this is substantially different from the New York statute under which the decision in Lewis v. Smith, 5 Seld., 502, was made; and that as their statute related specially to foreclosure cases,
The order appealed from is reversed, with costs, and the cause remanded for further proceedings.