Eaton v. White , 18 Wis. 517 ( 1864 )

By the Court,

DixoN, C. J.

Tbe plaintiff in error, who was plaintiff below, claims title to one undivided half of tbe lot through a mortgage executed by George White to Lane and Scott, dated May 23, 1849, and recorded June 18, 1850. Tbe defendant Artemisia White claims title to tbe same premises through a mortgage executed by tbe same mortgagor to Warren Ball, dated February 16, 1850, and recorded February 21, 1850. Both of these mortgages were of a much larger tract of land, of wbicb tbe undivided half lot in dispute was a part. Ball, tbe second mortgagee, testifies that at tbe time of taking and recording bis mortgage, be bad no knowledge of tbe mortgage to Lane and Scott. Under tbe registry law, therefore, bis mortgage, taken without notice of tbe previous mortgage, and being tbe first upon record, became tbe first lien upon tbe premises. In Ball’s mortgage, however, there was a reservation in these words: “ Excepting so much out of said tracts of land, as have been conveyed by the said White by deed to different individuals.” It is claimed by the plaintiff in error, that the Lane and Scott mortgage is within the language of this exception, and, therefore, paramount. We are of the contrary opinion, and that a fair construction of the exception requires that the mortgage should be excluded from its operation. It is true that the word “deed” is sometimes generic, and includes every writing or instrument under seal. In that sense a mortgage would be included. But it is frequently used in a much more limited sense, and signifies a writing by which lands are conveyed. This is its more popular and usual signification, and that in which it was evidently employed by the parties to the mortgage. The expression is, “tracts of land conveyed by deed." It appears from the case that White had previously- conveyed several parcels of the tract by deed, and-it was with reference to those conveyances, no doubt, that the exception was inserted.

The objection that it does not appear .that Stanehfield, who made the sale under the decree upon the Ball mortgage, was either a deputy sheriff, or specially deputed in writing by the sheriff to make the sale, comes too late. We suppose, inasmuch as Stanehfield does not sign his name as deputy, that it must be taken that he acted under special authority given by virtue of the statute now found as sec. 100, ch. 13, R. S. Indeed he says, in his affidavit, that he sold by and under the direction of the sheriff. This implies, we think, that he was specially deputed. If he was not deputed in writing, as required by the statute, the time to make that objection was when the plaintiff moved for a confirmation of the sale. After confirmation, the regularity of his appointment will be presumed, an d courts will not inquire into it collaterally for the purpose of impeaching the sale or the order of the court confirming it.

Judgment affirmed.