21 Wis. 410 | Wis. | 1867
We are inclined to the opinion that the affidavit of the appellant established' a case of excusable neglect under the statute. He states, in substance, in his affidavit for the purpose of excusing bis default, that when the summons was
That the appellant shows a good defense to the action upon the merits, so far as the one hundred acres is concerned, there can be no doubt. He bought this land of McWhorter in 1852 ; entered into the actual possession of it, and has continued in
It is contended that this defense cannot be interposed, because it is a paramount title to a portion of the mortgaged premises, which cannot be set up to the foreclosure suit. The plaintiff, however, made the appellant, with others, defendants to this action, and alleges in the complaint that Lake has or claims some interest in the mortgaged premises, or some part thereof, which interest is subject to the mortgage. A judgment of foreclosure and sale is taken, barring the defendants from all title and interest in the premises, and providing that the purchaser at the sale be let into possession on the production of the sheriff’s deed, &c. Of course, if effect is given to this judgment, it will result in removing the appellant from the possession of his home and property. The question is, cannot his right in some way be protected in this suit consistently with the doctrine laid down in Strobe v. Downer, 13 Wis., 10; Pelton v. Farmin, 18 id., 222, and authorities there cited? It appears to us that those rights should be protected; and, if the appellant establishes his defense, that the mortgage by mistake embraces his farm and never became a lien upon it, that a court at least will not turn him out of possession of his property. It will so frame its judgment as to protect his rights, even if it will not proceed to try the adverse paramount title in this foreclosure action. Here the appellant is in possession, and is the
By the Court. — The order of the circuit court, refusing to set aside the judgment and let the appellant come in with his answer, is reversed, .and the cause is remanded for further proceedings.