21 Wis. 331 | Wis. | 1867
Lead Opinion
Sperry and wife, in 1856, made three mortgages to Gribble of eighty acres of land, each containing a covenant of warranty of title. Gribble assigned the mortgages to Halstead, who foreclosed them; and the appellant claims title under the purchaser at the foreclosure sale. Sperry and wife, at the time the mortgages were made, were in possession of the land, but had title to only an undivided one-fourth part thereof, and the title to that was in the wife. After the purchaser at the foreclosure sale had received and caused to be recorded the sheriff’s deed of the premises, Mrs. Sperry purchased the other three-fourths of the land, and caused the deeds to her to be recorded.
The first question for our consideration is: Did the subse
A mortgagee takes the legal title, and, on default being made in the payment of the debt thereby secured, if there is no statutory provision to the contrary, may maintain ejectment. It has been decided in Massachusetts, that “ a mortgage is considered, as between the mortgagor and mortgagee, and so far as is necessary to give full effect to the mortgage as a security, as a conveyance in fee; but for all other purposes, until entry for condition broken, is a mere charge or incumbrance; and that a conveyance of the estate subject to the mortgage, by the mortgagor, passed such an interest or title as covenants real would attach to, and pass with the estate to the grantee.” White v. Whitney, 3 Met., 81. See also Sumner v. Williams, 8 Mass., 162; Town v. Needham, 3 Paige, 545. It is maintained that these and similar authorities make an exception to the general rule that covenants run only with the land itself, or with the legal title. We think, however, they are in harmony with it, and only decide that for some purposes the legal title is in the mortgagee, and for others in the mortgagor.
For the purposes of this action, within all the authorities, the legal estate was in form conveyed by Sperry and wife to Gribble. Did Gribble convey it to Halstead? On the back of each of the mortgages Gribble executed, under his hand and seal, an instrument in writing, duly witnessed and acknowledged, as follows: “ For value received, I, William H. Gribble, the person to whom the within mortgage was given, hereby assign the same to Charles Halstead, and authorize him to
An assignment of the formal instrument called a mortgage, and of the debt thereby secured, only passes an equitable interest in the mortgaged premises — gives the right to enforce in equity the mortgage lien — but does not in form convey the land, and passes no such interest as, within any of the authorities, real covenants run with. But the assignment in this case does not purport even to transfer the debt secured by the mortgage ; and if it does do it, it is only by doubtful implication. Such, no doubt, was the intention of the parties, and the notes probably were delivered with the assignment, and the as-signee thus became the owner thereof. It has been held, however, and we think rightly, that the assignment of a mortgage without the debt which it was given to secure, passes no beneficial interest to the assignee. Bailey v. Gould, Walk. Ch., 478. The benefit of the covenant of warranty, we think, did not pass to Halstead, as the legal title to the land to which it was attached did not vest in him. He could transfer to his assignees no greater interest than he had, and the purchaser at the foreclosure sale (the mortgagee not being a party to the action) acquired no greater or better title or interest than the pasties to the action had. Neither he nor his assignees have or would have had, if there had been a total failure of title, any right to
2. We now proceed to the consideration of the appellant’s title under the tax deeds. The premises were sold in April, 1857, for the taxes of 1856 ; and on the certificate of sale a tax deed was made to George W. Wright, on the 27th day of March, 1861. The circuit court found that the list of unredeemed lands, including that in question, was not advertised six months previous to the expiration of the time to redeem, but that the last six insertions ran into the six months. The deed was not executed until more than four years after the sale; and clearly, if the statutes in force at the time of the sale are to govern, it is not affected by such irregularity. See sec. 153, ch. 18, R. S., 1858 ; ch. 66, Laws of 1854, sec. 122; ch. 15, R. S., 1849. But if subsequent statutes are applicable to the advertisement of the unredeemed lands, and to the deed, we do not think, even then, that the failure to advertise the notice to redeem would make void the deed. The statute requiring the notice is merely directory, and if not complied with, inasmuch as it is an act required by law to be done after the certificate of sale has issued to the purchaser, and over which he can have no control, the omission of it ought not to be held in any way to affect him, unless the statute expressly prohibits a deed, or makes it void, in case the notice of redemption is not duly published.
3. On the 27th day of June, 1862, George W. Wright, the grantee in the first tax deed, conveyed the premises to the appellant. It is contended, that as the appellant was a tenant in common with Mrs. Sperry, he could not acquire this outstand
We will now apply those principles to the point under consideration. Sperry and wife conveyed, by way of mortgage, with covenant of warranty, the whole land to the mortgagee. This mortgage was foreclosed, and all the land was sold by virtue of the judgment of the court; and the purchaser at that sale purchased the whole, and received a deed of the whole, and conveyed the whole to the present plaintiff. The presumption is that he and his grantor claimed the whole, and intended to hold the whole; and this Sperry and wife knew, for they first
There is no other objection to the tax deed or title which we deem plausible, or such as to require’ further consideration. Eor aught that now appears, the grantee in- that deed thereby acquired title to the entire premises.
Concurrence Opinion
I concur with Mr. Justice Downee in holding that the tax deed on the sale of 1857 to George W. Wright was not invalidated because the redemption advertisement required to be made was not completed at least six months before the expiration of the period of redemption.
I have not examined the first point in the case sufficiently to express an opinion upon it and therefore do not wish to be understood as doing so.
By the Court. — The judgment of the circuit court is reversed, and a new trial ordered.