Wœhler v. Endter

46 Wis. 301 | Wis. | 1879

Lead Opinion

Cole, J".

This is an appeal from a judgment of nonsuit, in an action of replevin to recover possession of certain crops. The plaintiff was the purchaser of the land upon which the crops were growing, at a foreclosure sale made on the 19th day of June, 1878, under a judgment rendered on the 18th of June, 1877. The premises at the time of sale were, and had been for more than two years previous, in the possession of the defendant, under an unrecorded lease given by the mortgagor, subsequent to the mortgage. The defendant was not made a party to the foreclosure suit. On the trial, the plaintiff, to establish his title to and ownership of the crops, offered in evidence the deed executed by the sheriff' on the foreclosure sale, which was objected to on the ground that it appeared on the face of the instrument that the judgment was rendered on the 18th day of June, 1877, and that the sale took place on the 19th day of June, 1878, and that therefore the sale and deed were void. The deed was excluded, and the first error assigned is this ruling rejecting the deed.

In support of the ruling of the court below, the counsel for the defendant contend that the deed was void, because, under ch. 143, Laws of 1877, no proceedings on the judgment, as by advertising the mortgaged premises for sale, could legally take place until after the expiration of a year from the date of the judgment. In the case of The N. W. M. L. Ins. Co. v. Neeves, ante, p. 147, it was said that a proper construction of the law of 1877 did not justify any steps to be taken for a sale of the mortgaged premises before the expiration of one year from the date of the judgment; but in that case we did not have occasion to consider the effect of a sheriff’s deed executed on a sale prematurely made. That is the question involved here.

The counsel for the plaintiff insists that even upon the con-strnction of the law of 1877 as above indicated, still the deed should have been admitted in evidence, and that it was error to exclude it. He claims the rule of- law to be well settled, that the purchaser of mortgaged premises is entitled to the crops growing upon the land at the time of sale, and that the effect of the deed was to show that the plaintiff was entitled to recover the crops in this action as against the defendant. Prima, facie, he says, the deed was valid, and could not be collaterally impeached. Resides, by the third section of the act, the sale might be made within the year on the consent of the parties to the action, and, in the absence of all proof to the contrary, the presumption from the deed is, that such consent was given, and the sale legal.

In note (H), 1 Powell on Mortgages, 161, Mr. Coventry remarks, that, “ when it is said that, as between the mortgagee and mortgagor, the mortgagee is entitled to the emblements, the meaning is, that when the mortgagor has personally occupied the premises, and the actual possession is afterwards delivered to the mortgagee by the sheriff or otherwise, the growing crops which are found upon the premises become part of the security, and may be applied by the mortgagee to his own use; but the principle does not apply to the case where the growing crops have been carried off by the mortgagor before the mortgagee obtains possession, and between the time of his demand and recovery of possession.” And this same rule of law has been substantially laid down or recognized by numerous authorities in this country. Some of the eases bearing upon the point are cited in the brief of the counsel for the plaintiff. But we do not find that any of these authorities go to the extent of holding that a purchaser at a foreclosure sale can, before he obtains possession of the premises, or even before the sale is confirmed by the court, maintain an action of replevin for the crops growing upon the premises. In Lane v. King, 8 Wend., 584; Shepard v. Philbrick, 2 Denio, 174; Simers v. Saltus, 3 id., 214; Gillett v. Balcom, 6 Barb., 370; Howell v. Schenck, 4 Zab., 89, and Jones v. Thomas, 8 Blackf., 428, tbe purchaser at the foreclosure sale had obtained possession of the premises, and it was held that he, or those claiming under him, wei’e entitled to the growing crops. In the case before us, the purchaser, who was the mortgagee, has not acquired possession under the sale, nor did he offer evidence, or propose to show, in connection with the sheriff’s deed, that the sale had ever been confirmed by the court. Under these circumstances, we are unable to perceive how the rejection of the deed could have injured the plaintiff. For if the deed had been admitted in evidence, and every presumption contended for in favor of its validity had been made, still the plaintiff would not have made out a case without proving other material facts which it is not claimed existed. Consequently the error in excluding the deed, if it were one, must, in the position of the case, be disregarded. Gready v. Ready, 40 Wis., 478. For we are clearly of the opinion that this action cannot be maintained without showing a confirmation of the sale by the court. Whether, indeed, it would be necessaiy for the plaintiff to go further, and actually acquire possession of the premises under the sale,before he could maintain replevin for the crops growing on the ground, is a question not now before us, and not considered. But surely it was essential to show that the sale had been confirmed; for until such confirmation the sale remained under the power of the court, and was liable to be set aside on .proper cause. The title to the crops, with the right of possession, could not therefore be said to be absolutely and exclusively vested in the plaintiff before the sale had been reported and confirmed. This is the most favorable view of the case for the plaintiff that can be taken upon the facts. It is true, the record shows that demands have beenmade by the plaintiff for the possession of the premises, which demands have been refused. But this does not aid the case. If the sale is regular, it will doubtless be confirmed by the court, and the purchaser has an ample remedy in the law to acquire possession and vindicate his rights in the crops.

We have assumed, thus far, that the tenant was bound by the judgment of foreclosure because his lease was not recorded at the time of filing the notice of Us gendens. This position is controverted by the counsel for the defendant, because he was in the open possession of the property when the foreclosure action was commenced. We shall not examine the question, inasmuch as the action must fail because the sale has never been confirmed. That question is decisive of the case.

By the Court. — The judgment of the circuit court is affirmed.

On a motion for a rehearing, appellant’s counsel argued substantially as follows: 1. When this action was commenced, in August, 1878, no confirmation of a foreclosure sale was necessary to vest the title and right of possession in the purchaser. (1) C. O. Rule 31 of 1857 declares that, “ unless otherwise specially ordered by the court, the judgment shall direct .... that the purchaser at such sale be let into possession of the premises on production of the deed; ” and in Loomis v. Wheeler, 18 Wis., 524, this rule is construed as entitling the purchaser “ to be let into possession, and, if need be, to a writ of assistance, before confirmation of the sale.” (2) Sec. 2, ch. 143 of 1877, provides that the sheriff’s deed on such a sale “ shall vest in the purchaser the same estate, and shall be as valid, as if the same were executed by the mortgagor and mortgagee to the same person, .... and the purchaser shall be let into the possession of the premises so sold, on production of such deed.” (3) The judgment in the foreclosure action, which was offered in evidence in this action by the plaintiff, adjudged that “ the purchaser or purchasers at such sale, his or their assigns, be let into possession of the premises so sold, on production of the said sheriff’s deed or deeds.” 2. But admit that confirmation was necessary to a valid and complete judicial sale. The sheriff’s deed, being made by statute prima, facie evidence that there was a valid sale, was prima, faoie evidence of every fact necessary to its complete validity, including, on this supposition, the fact that the sale was confirmed; and no rebutting proof was introduced. It is clear, therefore, that the nonsuit cannot be sustained on the ground that there was no proof of confirmation. 3. The rule of the common law applicable between mortgagor and mortgagee before foreclosure, as to the right to emblements, has no application to the question of the rights of the purchaser at a foreclosure sale. In the former case the mortgaged estate was a mere pledge, after the mortgagee’s entry as well as before; but the authorities are uniform that by a foreclosure sale the purchaser takes absolute title in fee to the land, and with it the right to growing crops, as against the mortgagor and all persons holding the land under him in subordination to the mortgage. Clark v. Beach, 6 Conn., 142, 162; Swift v. Edson, 5 id., 535; Lane v. King, 8 Wend., 584; Shepard v. Philbrick, 2 Denio, 174; Aldrich v. Reynolds, 1 Barb. Ch., 613; Crews v. Pendleton, 1 Leigh, 297; Jones v. Thomas, 8 Blackf., 428; Sherman v. Willett, 42 N. Y., 150; Samson v. Rose, 65 id., 411; 1 Washb. R. P., 124; Willard on R. E., 89; Taylor’s L. & T. (5th ed.), 390.

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Rehearing

Cole, J.

Only a few words need be said in answer to the elaborate argument filed on the motion for rehearing. In the above opinion attention is called to the important fact, that in Lane v. King and the other cases the purchaser at the foreclosure sale had entered into the actual possession of the premises, and this circumstance distinguishes those cases from the one at bar. If counsel will but refer to Lane v. King, they will find this stated as a fact, that the purchaser, King, put a tenant into possession, and that, “ at the time of the entry of the tenant of King, there was a crop of rye in the ground on that portion of tbe farm let to Lane [who was the tenant of the mortgagor], and when the grain was fit for harvesting, Lane entered and cut and carried away the grain, for the doing of which King sued him in trespass.”

In Shepard v. Philbrick, Jewett, J., says at the close of the opinion: “ Shepard, having acquired the title to the mortgaged premises, which carried with it a title to the crop growing, and having acquired actual possession of the premises, showed a perfect title to the wheat in controversy, as well against Wright as Philbrick, the latter having no greater right or interest* in the crop than the former would have had if it had not been sold on execution against him prior to the sale under the mortgage.” In Sherman v. Willett, 42 N. Y., 146, the mortgagee, Cornell, as administrator of the estate of the mortgagor, sold the growing crop on a public administrator’s sale to the plaintiff, and he was held estopped from after-wards setting up any title or claim against his own sale. In Aldrich v. Reynolds, 1 Barb. Ch., 613, the mortgaged premises were advertised for sale under the statute, and the mortgagor obtained an injunction staying the sale, giving a bond for damages, etc. During the continuance of the injunction, he cut and removed the crops and grass from the premises. The premises did not finally sell for enough to discharge the mortgage debt, and the mortgagee was allowed, as part of his damages by reason of the injunction, the value of the crops and grass taken from the premises during the time the sale was stayed. The other authorities referred to on this point, in the argument on the motion, except the one in our own court, require no further comment.

II. But it is insisted that this court, in Loomis v. Wheeler, 18 Wis., 524, decided that no confirmation of sale under a foreclosure was necessary to vest in the purchaser at such sale the complete title of the property sold, and the right of 0 possession, and that this case is decisive upon the question before us. That was an action brought by the purchaser at the foreclosure sale, against the sheriff who made such sale and gave the deed, to recover damages for his refusing to execute a writ of assistance putting the plaintiff in possession. It was held, on demurrer, that the complaint stated no cause of action for reasons given in the opinion. Chief Justice DixoN further adds, that under rule 31, Rules of 1857, the purchaser at the foreclosure sale was entitled to be put into possession by a writ of assistance before the sale was confirmed. These remarks of the learned chief justice were, of course, obiter, and cannot properly be said to be a binding decision upon the point under consideration. We will also say that we are not entirely satisfied that the construction placed upon the rules of 1857 by the chief justice in that case, is correct. We do not think that these rules were intended to, or do in fact, change the long settled rule in chancery practice, that the sale should be confirmed before the purchaser is entitled to have the process of the court to put him into possession of the premises. Unde;-that practice, it is well known that the application for the writ of assistance stated that the sale had been confirmed, and that a certified copy of the order of confirmation, together with the deed, was exhibited to the defendant when possession of the premises was demanded. See Appendix of Precedents in 3 Barb. Ch. Prac., bottom page 625. Nor does ch. 143, Laws of 1877, change this rule of practice-, and render a confirmation of the sale unnecessary. We have been unable to find any well considered case which holds that a purchaser at the foreclosure sale can maintain an action of replevin for the crops growing upon the ground at the time of such sale, where the sale has neither been confirmed, nor possession of the mortgaged premises acquired- by such purchaser. We therefore think that the former opinion was sound, and the motion for a rehearing must be denied.

By the Court. — Motion denied.