Houghton v. Kneeland , 7 Wis. 244 ( 1859 )

By the Court,

Cole J.

This action was brought to foreclose a mortgage, given by James Kneeland and wife, and Albion Lewis and wife, to the respondent, to recover the payment of a bond, which was made and executed by Kneeland and Lewis, in the penal sum of twenty-eight thousand dollars, conditioned for the payment of $4,766 66, on the 1st of September, 1856, on the. 1st of September, 1857, and on the 1st of September, 1858, with interest. Default was made in the payment of the instalment falling due September 1st, 1857, and on the 19th of that month the action was commenced, by serving the complaint and summons on all the defendants except Mariner. The complaint stated that he, Mariner, had some interest in the mortgaged premises, which had accrued subsequent to the giving of the mortgage; and, as he was a non-resident, steps were take to bring him before the court by publication, &c. On the 16th of January, 1858, the respondent asked and obtained leave of court, to amend his complaint, by suggesting the death of Lewis, and alleging that Lewis, in his life-time, conveyed his interest in the premises, to said Samuel S. Mariner, and that Mariner then owned said interest, and also discontinued his suit as to the defendant Lewis. At the same time., an order of reference was taken to compute the amount due on the mortgage ; the report of the referee was duly made and confirmed, and a judgment of foreclosure and sale entered, directing the sale oí certain portions of the mortgaged premises, and for a personal judgment against Kneeland, for the deficiency, if any such there should be.

On the 8th of February following, Kneeland moved, upon certain affidavits, in the circuit court, to vacate and set aside the judgment, because:

1. The heirs and representatives of Albion Lewis, deceased, were necessary parties to the action and were not before the court.

2. No notice of the pendency of the action was filed in the office of Register of Deeds, after the filing the complaint in said action, according to the statute in such case made and provided.

3. The judgment and proceeding in the action were in other respects irregular and informal.

This motion was founded upon the affidavits of the appellants, Kneeland and Ephraim Mariner, the former oí whom, in substance, deposed in his affidavit, that Lewis, who was originally a defendant, died on or about the 24th of October, 1857 ; and that Samuel Mariner, one of the defendants, did, by two deeds, one bearing date September 9th, 1857, the other dated October 13th, 1857, reconvey the lands to Lewis, which Lewis had previously conveyed to said Mariner; and that he was informed that under the judgment of foreclosure, the purchaser at said sale, would only acquire title to but one-half of the mortgaged premises; also that he was informed the judgment was void, because the personal representatives of Lewis were not made parties to the suit at the time the same was entered; that the mortgage was given to secure a part of the purchase money of the mortgaged premises, which ■were purchased by him and Lewis, each owning one-half thereof ; and that one-half of the amount due, on the mortgage should be paid by the representatives of Lewis; and that such representatives or heirs of Lewis, were necessary parties to the action, and that great injustice would be done him unless the judgment of foreclosure was vacated and set aside; and they made parties to the suit, &c. The affidavit of Ephraim Mariner stated that the deeds, mentioned in Kneeland’s affidavit, were made by him, as attorney in fact, to Lewis, at or about the time of their respective dates, and that he had power and authority to execute the same for Samuel S. Mariner. The circuit court refused to set aside the judgment, and denied the motion made for that purpose. From the order of the circuit court refusing to set aside the judgment itself, the appellants brought their appeal to this court.

The first inquiry which now presented itself is, whether the personal representative, or heirs of Lewis, were indispensable parties to the foreclosure suit ? We are of the opinion they were not. The mortgage could be foreclosed as to Knee-land without bringing them before the court. Had Kneeland appeared in time, and raised his objection, that all the parties interested in the subject matter of the litigation were not before the court, suggesting who were the personal represen-tives of Lewis, the court might properly have directed them to be made parties. But he took no such step in the cause until the respondent has discontinued his suit as to Lewis, and the judgment of foreclosure had been entered. And even then in making his application to the court, to vacate the judgment, and to order the personal representatives to be brought in, he does not disclose who such representatives were. The respondent could not know anything about the existence of the deeds from Samuel S. Mariner to Lewis, at the time he obtained his judgment, since those deeds were not put upon record until the 6 th of February after the judgment was entered, and just before the application to vacate the judgment was made. At the time the action was commenced and up to the discontinuance of the suit, as to Lewis, the title of record was in Kneeland and Mariner. It was certainly a little singular that these deeds did not find their way upon the record until after the judgment. Whether they were kept off the record for the purpose of misleading the respondent as to the real condition oí the title, or whether by oversight, we have no means of determining. But at all events they were not recorded until the respondent had seen fit to waive the relief to which he might have been entitled as against the personal representatives or heirs of Lewis, and look to the interest of Kneeland alone in the premises, to satisfy his judgment.

Under these circumstances we do not think the appellant kneeland has any right to complain.

Again it appears that the notice of the pendancy of the suit was filed in the Register’s office, several days before the complaint was filed in the office of the clerk of the court, and it is contended, that because it was thus filed before, instead of being filed simultaneously with or after the complaint was filed, that it is invalid by § 37, of the code. It is not pretended but that the notice of Us pendens was filed for more than twenty days before the judgment was entered. It was in fact, filed on the 22d day of September, and the circumstance that it was on file before the complaint, cannot destroy its legal affect. The object of filing the Us pendens is obviously for the purpose of giving notice to purchasers of the property, of the pendency of the action. Suppose the plaintiff files this notice when he commences his suit, is it not as sufficient as though filed a few days thereafter ? Most certainly.

A still further objection has been taken to the sufficiency of the proof of publication of notice, to Mariner. If that proof was defective it was not a matter of which Kneeland could take advantage.

We think the circuit court properly refused to set aside the judgment of foreclosure, and the order overruling the motion for that purpose, as well as the judgment of foreclosure and sale, must be affirmed.