Landon v. Burke , 36 Wis. 378 ( 1874 )

Cole, J.

This is an appeal from a judgment entered on default. The action is brought to foreclose a contract for the sale and conveyance of real estate on account of the failure of the vendee to make payments according to the contract. A judgment of strict foreclosure was entered in conformity with the practice established in Button v. Schroyer, 5 Wis., 598, and Baker v. Beach, 15 id., 99.

It is claimed by the counsel for the defendants that this judgment should have been for a sale of the premises, instead of a strict foreclosure. It is said that ch. 195, Laws of 1859, sec. 5 (Tay. Stats., 1702, § 6), enacts that in all cases of foreclosure of mortgages by the judgment, decree or order of any court, such judgment, order or decree shall direct and require the mortgaged premises to be sold, and the equity of redemption shall not be foreclosed without such sale, except by consent of parties in open court; and it is argued that this statute is applicable to this ease. We are unable to concur in this view of that enactment. We do not think it was intended to apply to this class of cases, and to change tbe practice which the court had prescribed in respect to them. That practice was well understood when the law of 1859 was passed ; and it is fair to assume, if the legislature intended to change it by that statute, that this intention would have been expressed in clear language. This objection to tbe judgment, therefore, must be overruled.

Another objection taken to the judgment is, that the relief granted exceeds that demanded in the complaint This objection we deem untenable. The relief demanded was, in substance, that the purchaser, Ann E. Burke, pay the plaintiff, or bring into court, the amount actually due upon the contract, by a day to be fixed by the court; and that, in default of such payment, she and her husband, and all persons claiming under them subsequent to the commencement of the action, be barred and foreclosed of all right, title and interest in the lands, and be adjudged to quit and surrender the possession thereof to the plaintiff, and pay costs of suit. The judgment is, that Ann E. Burke and Abdon L. Burke, her husband, pay the plaintiff or bring into court the amount by the day specified, with costs, etc. In this case, though the wife was the purchaser, yet, in an action against her to foreclose her interest, the husband was a necessary party defendant (sec. 15, ch. 122, R. S.); and we do not well see how this clause of the judgment could have been otherwise than it is.

There is, however, one objection to the judgment which we think is well taken. The judgment provides, on default of the defendants to make payment and a refusal to surrender the possession of the premises to the plaintiff, that the sheriff be and is thereby authorized, upon a certified copy of the judgment, to remove the defendant from the premises and put the plaintiff in the possession thereof. The judgment does not require that any proof should be made to any officer, of the nonpayment of the money directed to be paid, or that any application be made for other process to remove the defendants from the possession. It seems to us that correct practice requires that an application should be made to tbe court — founded on proof of a demand and refusal on the part' of tbe defendants to pay the amount adjudged to be paid, —for the issuing of a process or execution in the nature of a writ of assistance, to place the plaintiff in possession of the premises. Some such proceeding we think was contemplated by the statute (secs. 4 and 8, ch. 134, R. S.) ; at all events such a' practice will more fully protect the rights of all concerned, than the one sanctioned by the judgment. See Goit v. Dickerman, 20 Wis., 630.

By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for the entry of a judgment in conformity with this decision.