Wright v. Sperry
25 Wis. 617
Wis.
1870
Check Treatment
Dixoít, C. J.

The title of the plaintiff, and his right of possession of the land in question under the tax deed to George W. Wright, is res adjudícala by the former decision of this court; and that renders all other questions immaterial. Wright v. Sperry, 21 Wis. 331. After discussing the question of tenancy in common between the plaintiff and defendants, and showing that no such tenancy existed, and that the. plaintiff might lawfully claim title to the whole premises by virtue of that deed, the opinion proceeds as follows: “ There is no other objection to the tax deed or title which we deem plausible, or such as to require further consideration. For aught that now appears, the grantee in that deed thereby acquired title to the entire premises.” In this opinion, delivered by Justice Dowxer, Justice Cole concurred. It was so understood at the time, and such is the fair interpretation of the note appended by Justice Cole to the opinion. He expressed no opinion upon the first, but concurred with Justice Dowxer on the second and third points discussed in the opinion. It is obvious that this was so, from the fact that the judgment was reversed, a conclusion which could not have been arrived at except by holding that the plaintiff had shown a valid title under the tax deed. Now the facts with respect to this title are the same now as on the former trial, and, by a well-settled and most undoubted principle, that adjudication, whether right or wrong, binds the court in this case, and is conclusive upon the parties.

The only question respecting this title, not discussed in the former opinion, though concluded by the adjudication, is as to whether the defendants were to be regarded *620as parties in possession claiming under title adverse to that of the grantor, so as to avoid the conveyance from George W. Wright to the plaintiff, within the meaning of the statute. E. S., ch. 86, § 7. Speaking upon the point of tenancy in common, the opinion contains the following allusion to the question of possession: “The purchaser at the foreclosure sale had the right of immediate possession of all the premises, and might have had a writ of assistance to put him in possession; and if he had taken actual possession, it would have been adverse to the co-tenants, who afterward conveyed to Mrs. Sperry. perhaps we ought to hold that the possession of Sperry and wife, after the confirmation of the sale, was the possession of such purchaser as to the whole of the land.” If this question were still open, we should have little difficulty in disposing of it upon the principle here stated. The relation of tenure existing between the mortgagor and mortgagee, the former holding of the latter, is such that the law will not admit the former to dispute the title of the latter. ‘£ Between the mortgagor 'and mortgagee, so long as the latter does not treat the former as a trespasser, the possession of the mortgagor is not hostile to, or inconsistent with, the mortgagee’s right. The possession of the mortgagor is, to this extent, the possession of the mortgagee.” 2 Washb. on Eeal Prop. (3d ed.) 158; Avery v. Judd, 21 Wis. 264, 265. And generally it may be said, that the possession of the mortgagor is so far that of the mortgagee that he cannot dis-seize him. And it has been held that a mortgagee may purchase in an outstanding prior judgment title, and hold it as being paramount to his mortgage title. WaWioTl ’ s Ex'rs v. Rives, 34 Ala. 96 ; Washb. on Real Prop. 160. It would certainly be very strange if a mortgagee could not purchase in outstanding titles and liens for his own protection. Such being the relation between mortgagor and mortgagee before foreclosure and sale, the same relation extends to the purchaser at such sale, and *621Ms assigns, after conveyance and confirmation, and until fie or tfiey fiave been put into possession in pursuance of tfie decree. Tfie possession of tfie mortgagor still in, is tfie possession of such, purchaser and those - holding under him, and for tfie purpose of applying tfie provisions of tfie statute under consideration it must so have been field.

By the Court. — Judgment affirmed.