Ehle v. Brown , 31 Wis. 405 ( 1872 )

The following opinion was filed at the January term, 1872.

Lyon, J.

The plaintiff claims to be the owner of the equity of redemption in a certain lot described in the complaint, and has brought this action to enforce her alleged right to redeem the same from an outstanding mortgage thereon, and for an accounting.

The case is fully stated and explained by the circuit court in the findings of fact, which, together with the conclusions of law therefrom, as found by such court, are as follows:

“ The court find the following facts from the evidence :

“ 1. That the parties claim from a common source of title, Harriet and Elijah Rouse ; that they, being seized of the premises described in the complaint, on the 23d day of April, 1859, mortgaged the same to one Thos. E. Wallace, by mortgage bearing date on that day, for $400, due in one year, with twelve per cent, interest, which mortgage was recorded on the day of the date thereof, in the office of the register of deeds in Eond du Lac county.

“2. That Harriet and Elijah Rouse sold and conveyed the said premises, subject to the mortgage of Thos. E. Wallace, to 1 The Wisconsin Paint Company,’ by warranty deed, dated July 15, 1859, and recorded the same day in the office of the register, of deeds in said county; and that‘The Wisconsin Paint Company ’ sold and conveyed the premises by quitclaim deed, dated February 29, 1860, and recorded in the office of the register of deeds aforesaid, on the 8th day of October, 1870.

“ 3. That the defendant Hawkins received what purported to be a deed of said premises, from George E. Wheeler, purporting to be sheriff of Eond du Lac county, dated September 9,1861, and duly recorded the same day; which deed purported to be given in pursuance of a sale upon a judgment in an action in the circuit court for Eond du Lac county, for the foreclosure of the mortgage given to Wallace hereinbefore stated, which judgment was recited to have been given July 11,1860, in an action wherein Thos. E. Wallace was plaintiff and Elijah Rouse, Harriet Rouse, ‘ The Wisconsin Paint Company, ’ and Nicholas Ehle were the defendants; which sale was recited to have been made August 21, 1860, to Thos. E. Wallace, and the certificate thereof afterwards assigned to Hawkins; that Hawkins swore that he took the assignment of the certificate of sale from the sheriff, June 7th, 1861.

“ 4. That Hawkins paid for such certificate $400, went into possession of said premises under his deed at the date thereof, and so continued until November 28, 1865, when he conveyed to the defendant Harvey P. Brown, for value, who recorded his deed at the same date, and entered into possession claiming to hold under the same, and so continued until September 5th, 1866, when he sold and conveyed to the defendant Gilktt, who, at the date thereof, recorded his deed, entered into possession under the same, and so continued until September 15, 1868, when he conveyed to defendant Simmons, for value, who thereupon entered into possession, and so continued until January 19, 1870, when he sold and conveyed to the defendant Charles, for value, who entered into the possession and so still continues ; and that each of said defendants entered and claimed to own under the title so claimed by said Hawkins as aforesaid.

“5. That at the dates, recited in the deed to Hawkins, of the alleged foreclosure and sale, the premises were occupied by one Hyde. That Hawkins testified that he moved Hyde into the house with his own team, and that Hyde remained in the house all the time until after he, Hawkins, took the sheriff’s deed; that Hyde moved out- soon after he, Hawkins, got the sheriff’s deed; that he did not know by what right Hyde was in the house, nor whose tenant he was. That Nicholas Ehle testified that he was the husband of the plaintiff, and that, as her agent, he directed the property to be leased in 1860, after the deed from the ‘ Wisconsin Paint Company ’ to the plaintiff; that he did not know the name of the tenant; that he directed it to be leased by Mr. Francis; that he did not know that Francis leased it for the plaintiff; that he knew it was occupied at one time after the deed, but did not know by whom.”

“ 6. That the deed to the plaintiff was given at the request of her husband, Nicholas Ehle, without consideration from her — she being at the date of said deed, and still continuing to be, the wife of said Nicholas, and they both being residents of Kenosha, Wisconsin.

“ 7. That the plaintiff had no notice of any foreclosure of the Wallace mortgage, neither had either of the defendants any knowledge of the plaintiff’s deed, except, such as they might acquire from the tenancy aforesaid.

“ 8. That notice of the pendency of this action in due form was duly filed at the commencement of this suit.”

“ And as conclusion of law the court finds,

“ 1. That the plaintiff is entitled to redeem from the said Wallace mortgage.

“ 2. That she is entitled to an account for the rents and profits of said premises which have been possessed or received by the defendants, and each and every of them, or which without willful default or neglect might have been received.

“ 3. That upon payment of 'whatever may remain due upon said mortgage, as found on such accounting, the plaintiff is entitled to the possession of said premises, and a release of all claim thereto from the defendants.

“ 4. That, in case of an excess of rents and profits, afterpay-ing said mortgage and interest, the plaintiff is entitled to a judgment for the amount of said excess against the defendant or defendants properly chargeable with the payment of the same.

“5. And that the question of costs be reserved.”

The defendants duly excepted to several of the findings of fact, and to each conclusion of law. Judgment was entered in accordance with the conclusions of law, for the plaintiff ; from which all of the defendants except Hawkins have appealed to this court.

The bill of exceptions does not purport to contain all of the evidence given upon the trial, and their exceptions to the findings of fact are, therefore, unavailable to the defendants. In such case we must presume that the evidence was sufficient to prove the facts found by the circuit court. This has been so frequently and so uniformly held by this and other courts, that no reference to the adjudged cases is necessary. The judgment being in accordance with the pleadings and the conclusions of law, the controlling question to be determined is, Are the conclusions of law sustained by the facts found by the circuit court ?

I. The defendants claim the lot in controversy under and through a sheriff’s deed, or what purports to be a sheriff’s deed, executed to the defendant Hawkins on an alleged sale of such lot pursuant to a judgment of the circuit court for Eond du Lac county, in an action to foreclose the ’Wallace mortgage from which the plaintiff seeks to redeem. In this case the court finds the existence of such sheriff’s deed, and states some of the recitals therein contained, but does not expressly find that any of the proceedings therein recited were ever had, or that the person executing such deed was in fact sheriff. It is insisted by the counsel for the plaintiff, that the findings of fact fail entirely to stow that there was any valid foreclosure of the mortgage or sale- of the lot. But we think otherwise. By the provisions of ch. 40, Laws of 1869, sec. 1, the sheriff’s deed is made prima facie evidence “ that the title of the person or persons against whom the judgment was rendered, and by virtue of which the sale and deed purport to have been made, * * * in the lands and real estate described in such deed, passed to and vested in the grantee or grantees in such deed and this without making other proof either of the j udgment or sale than that furnished by the deed. Sec. 2 provides that a duly certified copy of the record of such deed shall have the same force and effect as evidence, as the original. Sec. 8 is as follows: “ The provisions of this act shall apply to deeds heretofore executed and recorded, as well as to those hereafter executed and recorded.” (Tay. Stats., ch. 137, §§ 123 to 125 inclusive.)

The alleged sheriff’s deed to Hawkins was executed long before the enactment of the above statute, although this action was commenced after the same was enacted, and it is contended that the legislature had no power to give a retroactive effect to that law by making the same applicable to conveyances theretofore executed. The law affects no vested rights, and certainly does not impair the obligation of any contracts. It merely establishes a rule of evidence by prescribing what shall be the effect of the deed when read in evidence on the trial. It does not preclude the party claiming adversely to the deed from showing that there is no valid judgment or sale to support it, but simply changes the burden of proof to such party, and makes it incumbent upon him in the first instance to produce the record of the preliminary proceedings. We perceive no valid constitutional objection to the law. We think that a fair construction of the law of 1869 requires us to hold that when the defendants read the sheriff’s deed, or rather a certified copy of the record thereof, on the trial, they thereby proved, prima facie, that there was a valid judgment in the foreclosure action, and that there had been a valid sale of the lot pursuant thereto, and that the conveyance upon such sale was executed by the proper officer. It follows from this view of the law, that the finding of the circuit court in respect to the sheriff’s deed is equivalent to a finding that there was a valid judgment in thé foreclosure action, and a valid sale and conveyance of the lot in controversy pursuant thereto, nothing appearing to the contrary in the record.

II. There being a valid sale and conveyance of the lot to Hawkins pursuant to the judgment in the action to foreclose the Wallace mortgage, the effect of such conveyance was to vest in Hawkins the same estate which he would have taken had Harriet and Elijah Rouse, the mortgagors, and Wallace, the mortgagee, together with the Wisconsin Paint Company and Nicholas Ehle, joined in the conveyance of the lot to Mm. Laws of 1859, ch. 195, sec. 3; Tallman v. Ely, 6 Wis., 244. It is perhaps a fair inference from the findings, that Hawkins, when he purchased the certificate of sale, is chargeable with constructive notice that the plaintiff was then the owner of the equity of redemption. There was then a tenant on the lot, whose occupancy, nothing appearing to the contrary, must be presumed to have been subordinate to the legal title, and the fact that the lot was so occupied was probably sufficient to put Hawkins upon inquiry, and to charge him with constructive notice that the plaintiff held the legal title, although her conveyance had not been recorded.

If this be so (and such is the most favorable view for the plaintiff), then Hawkins only took an assignment of the Wal lace mortgage, by the sheriff’s deed, and there still remained an outstanding equity of redemption in the plaintiff, because she was not a party to the foreclosure action. In such case, as against Hawkins, there can be no doubt of the right of the plaintiff to maintain this action. Tallman v. Ely, supra; Stark v. Brown, 12 Wis., 572.

III. But Hawkins took possession of the lot, removing the tenant therefrom, and all of the other defendants were successive purchasers thereof for value and in good faith, holding the same under conveyances duly recorded, and without any notice, either actual or constructive, of the plaintiff’s interest therein. When each of these appellants bought and paid for the lot and took a conveyance thereof, his or her immediate grantor was in the actual and exclusive possession, and the records in the office of the proper register of deeds showed that he or she had a perfect title thereto by an uninterrupted line of conveyances from the original source of title, or by proceedings which we have seen were equivalent thereto. Such are substantially the findings of the circuit court. Under these circumstances we see no good reason why the appellants are not protected by the recording act. R. S., ch. 86, sec. 25. It must be that each of them is “ a subsequent purchaser in good faith and for a valuable consideration of the same real estate,” and that the conveyance of each was duly recorded before that under which the plaintiff claims. We see no escape from the conclusion, that by reason of her neglect to place her conveyance from the Paint Company on record in due time, the plaintiff has lost her right to redeem as against the appellants. Hoyt v. Jones, ante, p. 389; Hoppin v. Doty, 22 Wis., 621; Hodson v. Treat, 7 id., 263; Jackson v. Chamberlain, 8 Wend., 620.

The judgment against the appellants must be reversed, and the cause remanded with directions to the circuit court to dismiss the complaint as to them.

By the Court.— So ordered.