Downer v. Cross , 2 Wis. 371 ( 1853 )

By the Court,

Whitow, C. J.

It appears that a decree of foreclosure, and for the sale of the mortgaged premises, was made by the Circuit Court for Milwaukee county, and that a sale took place under the decree. Upon the coming in of the report of the commissioner who made the sale, the sale was con firmed by the court, and the defendant ordered to pay to the complainant the sum of sixty-three dollars and twenty-four cents, that being the amount due, after applying the proceeds of the sale of the mortgaged premises.

From the order confirming the sale and ordering the payment of the money, an appeal was taken to the Supreme Court, and the order reversed. The case having been remitted to the Circuit Court for further proceedings, that court vacated and set aside the sale made by the commissioner. The complainant then amended his bill of complaint, by making Oliver B. Pierce a defendant, alleging that he had, or pretended to have, some equitable interest in the land mentioned in 4he original bill. Process by subpcena was issued against him, and the bill taken as confessed against him for want of an appearance. Afterwards another decree of foreclosure, and for the sale of the mortgaged premises, was made, but was vacated at the same term. At the same term- James H. Rogers filed his petition, setting forth, among other things, that he was the purchaser of the mortgaged premises at the sale, and praying that the order vacating and an-the sale might be set aside and vacated. At a subsequent term, tbe complainant filed a petition £or fulqper proceedings in tbe case, and a motion for a 3.e_ga]e 0f mortgaged premises. It further appears by tbe amended return of tbe clerk of tbe Circuit Court, that that court vacated tbe order wbicb was previously made, setting aside and vacating tbe sale made by tbe commissioner, although no order to that effect, signed by tbe judge, appears among tbe papers of tbe case.

Tbe petition and motion of tbe complainant appear to have been argued in connection with tbe petition of Rogers above referred to. After argument upon tbe motion and petition, tbe court made tbe following order, from wbicb this appeal is taken :

“ This cause having been argued by counsel for tbe complainant, and tbe defendant, James B. Cross, and also by James S. Brown, as solicitor for James H. Rogers, and it appearing to tbe court that said James IT. Rogers has title to tbe mortgaged premises under and by virtue of the sale to him heretofore made by Leander Wyman, as commissioner, in pursuance of a decree of foreclosure in this cause, and that tbe title of said Rogers is unaffected by tbe reversal of tbe order and decree of this court by the Supreme Court; and that it is improper to vacate said sale to him, and order a new sale of tbe mortgaged premises by reason of such reversal. It is therefore ordered and decreed by tbe court, and tbe court does hereby order, adjudge and decree, that tbe prayer of tbe petition of said Downer, on file in this case, for a re-sale of said mortgaged premises, be, and the same hereby is, denied, and that tbe motion of said Downer to vacate said sale, and for an order of re-sale, be, and tbe same is, hereby overruled: And it is further ordered decreed, that said Downer be,. and he hereby is, barred from all further proceedings in this cause against said mortgaged premises, and from all title and equity therein, and. that said Rogers may have possession of said mortgaged premises as purchaser, under and pursuant to the decree of sale and foreclosure, heretofore made herein ”

It will be seen that this order does not, in direct terms, confirm the sale which was made to Rogers ; but perhaps, if it should be permitted to stand, would have the same effect, as it bars the complainant from any further proceedings against the premises sold, for the purpose of collecting the mortgage debt, and from all right, title and equity therein, and provides that Rogers shall have possession of the premises as purchaser under the sale. It will be seen further, that it . makes no provision for the payment to the complainant of that part of the mortgage debt still due. This order is entitled in the case as it stood after Pierce had been made a party, and purports to be an order in a case, with different parties from the one in which the .sale was made.

It is contended, on tne part of Rogers, 'that he acquired a right to the land by purchase at the sale, of. which he cannot be divested by subsequent proceedings between the parties to the suit. But the rule is clearly otherwise. We held, in the case of Strong vs. Catton (1 Wisc. R. 471), that the court had the power to set aside a sale of mortgaged premises, and that the purchaser bought the premises subject to the equities of the parties to the suit.

We do not think that we are called upon to decide what was the effect of making Pierce a party defendant while there was a final decree in the case in full force against Cross, as it can make no difference with the decision of the question presented by this appeal; £01, •£ pe waa pr0perly made a defendant, there should be not only a re-sale of the mortgaged premises, but a new decree of foreclosure, in order to foreclose his interest in the property ; while, if the proceedings by which he was made a party were irregular, and the case stands as to parties as it did while Cross was sole defendant, the decree of the Supreme Court, reversing the order of the Circuit Court, confirming the sale, and ordering the payment of the money, is conclusive.

It is contended on the part of Rogers, that for aught that appears, the order of the Circuit Court was reversed by the Supreme Court, because it ordered the payment of that part of the mortgage debt remaining due, after applying the proceeds of the sale of the mortgaged premises, and that it does not appear that it was reversed because the court was of opinion that there should be a re-sale. But this cannot be a correct view of the case. The bill of complaint avers the execution of a bond by Cross, conditioned for the payment of three hundred dollars, to secure which the mortgage' was made ; and the bill of complaint was taken as confessed against him.

Now, if. the Supreme Court had been of opinion that the sale to Rogers was regular, there can be no doubt of the propriety of a decree against Cross, the obligor and mortgagor, for that part of the mortgage debt remaining due, after applying the proceeds of the sale of the mortgaged premises. Rev. Stat. chap. 84, sec. 77.

Again, the whole order in question was appealed from, and it was reversed in toto. If it had been incorrect in the opinion of- the court, only as to the payment of the money, it would have heen reversed only as to that, and that part of it which related to the sale would have heen permitted to stand. Rev. Stat. chap. 84, sec. 112. While, if there was to he a re-sale, it could not he known what sum the mortgaged premises would bring, and of course it could not he determined whether there would he any defr ciency. Hence, in such a case it would he necessary to reverse the whole order.

The Supreme Court must therefore have reversed the order for the reason that it was of opinion there should he a re-sale, and this decision of the matter is conclusive upon all the parties. Washington Bridge Co. vs. Stewart et al., 3 How. R. 413.

The order of the Circuit Court is reversed.