Sauer v. Steinbauer , 14 Wis. 70 ( 1861 )

By the Court,

DixoN, 0. J.

The order of the circuit court must be affirmed. For the purpose of executing the judgment, the place where the sale was made was as much within the jurisdiction of the sheriff as any other place within the city or county of Milwaukee. The act of cession declares-that it shall in no wise destroy, impair or interfere with the jurisdiction of this state over wrongs?, misdemeanors or crimes committed against the laws of this state, within the territory thereby ceded, nor with the service or execution of any legal process. Chapter 1, Laws of 1855. It may be true that the judgment of a court directing the sale of real estate is not a “writ” or “process” within the limited signification of those words as used in the constitution and statutes prescribing “the style of writs and process;” yet we think it would be difficult to maintain that it is not legal process according to its ordinary and more enlarged sense. It then signifies the means which may be lawfully used to compel the performance of any act which may become necessary in the progress of the action, or to enforce and carry into effect the judgment or decree of the court. ■ It was in this sense »that it was used by tbe legislature; and within it, the order of sale, considered as the means by which the judgment is to be executed, is emphatically legal process. It is the instrument provided by law for carrying into execution the judgment which the court has power to pronounce, and the acts to be performed pursuant to its requirements are purely ministerial in their character. We are therefore of opinion that the place of sale furnished no valid objection to the confirmation of the report.

The custom in the city of Milwaukee, of allowing purchasers at sheriff’s sales made on Saturday to postpone the payment of the sums bid until the following Monday, and then to pay the money and receive the conveyance, if such custom can be deemed to have been established, affords no ground for setting aside a sale because it was not complied with. Such custom, being in contravention of the rules prescribed by law for conducting such sales, is void. The sheriff has no authority to sell upon credit. He must sell for cash, and the payment must be made at once, unless it be delayed by the act or consent of the parties. Where the parties do not consent to such delay, the purchaser must be prepared to pay upon acceptance of his bid and demand made for the money; and if he does not do so, it is the duty of the sheriff immediately to re-offer the property. The validity of the practice of giving time depended therefore entirely upon the sanction of the parties in each individual case. In the present instance the creditor notified bidders that he would not be bound by it; and if he had not done so, proof of his assent would still have been required. The record contains nothing of the land. The sale was in this respect regular.

Although we now have no statute directly authorizing the entry of judgment against the mortgagor for any balance of the mortgage debt that may remain unsatisfied after a sale of the premises, still we think that by virtue of sections 29 and 80 of chapter 125 of the Revised Statutes, the order in this case must be sustained. Section 29 specifies seven classes of actions in which it is declared that the plaintiff may unite in the same complaint several causes of action, whether they are such as have heretofore been denominated legal or equitable, or both. The first class is where the several causes of action arise out of the same transaction, or transactions connected with the same subject of action. This case clearly belongs to this class. The barring of the de- ° ° . , fendant’s equity of redemption, after the condition or the mortgage had been broken, constituted what has heretofore been denominated an equitable cause of action. His liability for the residue of 'the mortgage debt, after the remedy under the mortgage had been exhausted, was a cause of action purely legal in its nature. Both arose out of the same transaction. Section 30 provides that the causes of action so united must all belong to one of the enumerated classes, and must affect all the parties to the action, and not require different places of trial, and must be stated separately. The causes here stated belong to the same class. They affect all the parties, the defendant being the mortgagor and the party personally liable for the deficiency; and they do not require different places of trial. Whether, if other persons, against whom no personal judgment was claimed, and who therefore would not have been affected by the legal cause of action, had been made parties defendant for the purpose of cutting off their equitable interests in the land, a like order could have been made, it is unnecessary here to inquire. In Walton vs. Goodnow [13 Wis., 661], we held that a demurrer to a complaint for such a joinder of actions was not frivolous. And in Borden vs. Gilbert [id., 670], we determined that a guarantor of a promissory note secured by a mortgage, could not be made a party defendant to an action to foreclose the mortgage, for the purpose of obtaining a judgment against him on the guaranty.

Order affirmed.