23 Wis. 57 | Wis. | 1868
One of the principal questions discussed in, this case, namely, whether the defendant was in a position to take advantage of the irregularity in the execution sale, has, in effect, already been decided in the negative in Raymond v. Pauli, 21 Wis. 531. The counsel for the defendant struggled somewhat with the doctrine of that case, and further attempted to show that there were some facts involved in the present one which really rendered that decision inapplicable. But we are unable to distinguish the cases in principle. It must be admitted that the statutory right of redemption from the execution sale was gone at the time of the foreclosure sale under the Holborn mortgage. The mortgagee in that mortgage had made no effort to redeem from the judgment while the right to redeem existed. She, as well as the judgment debtors, must therefore be presumed to have acquiesced in the sale, even if she could have in any way taken advantage of the irregularity in not selling the real estate levied on in tracts and parcels separately — an objection it is doubtful about her being able to make to the sale. The purchaser at the foreclosure sale must be deemed in law to have had notice that the title of the purchaser at the execution sale had become absolute. It is said that he had no actual knowledge of the existence of the Ehodes and Dewey judgment, or of the sale under it. But he must be held to have had constructive notice, at least. The judgment and certificate of sale were matters of record, and had he taken the trouble to examine in respect to the title, hé would have learned all about them. This ho did not do. Now, upon what prin
The title of the purchaser at the execution sale, then, having become perfect, what is the true relation of the parties? We are disposed to hold that such purchaser took his title, and still holds it, subject to the prior mortgage interest. Of course the Moss mortgage was' paramount and superior to the Rhodes and Dewey judgment. This is not denied. But it is claimed by. the counsel for the plaintiff, that, on the foreclosure of the Holborn mortgage, the Moss mortgage was simply paid and discharged. Was this so ? In the foreclosure suit brought by ' Lucy J. Holborn, Moss, the prior mortgagee, was made a party defendant. He came in and answered, setting up his rights. Judgment was rendered, that the property covered by the mortgage be sold, and that the Moss mortgage be first paid out of the proceeds of the sale. This was done, and the proceeds so applied.
The Moss mortgage was paid by the sale of the property, and the purchaser at the foreclosure sale took title as well by virtue of the foreclosure of the first as of the second mortgage. Or, if it is not technically correct to say that the Moss mortgage .
By the Court. — The judgment of the circuit court is reversed,' and the cause remanded for further proceedings. '