Seeley v. Manning , 37 Wis. 574 ( 1875 )

Cole, J.

A general remark may be made with reference to-a number of points on the brief of counsel for the defendant. Mere irregularities in the foreclosure proceeding, which did not affect the jurisdiction of the court, cannot be taken advantage of in this action. The proper way to correct them was by an appeal from the foreclosure judgment.

The first exception to be noticed is the one taken to the admission of the sheriff’s deed in evidence. No grounds of objection were specified to the introduction of the deed, and none are pointed out on the brief of defendant’s counsel which we deem valid. Ch. 40, Laws of 1869, declares that all deeds purporting to convey any interest in real estate, which are duty executed, acknowledged, and recorded in the office of register of deeds of the county in which the lands are situated, and which purport to be executed by any sheriff, deputy sheriff, referee or other person, by virtue of any judgment or decree of any court of record or in pursuance of any sale made upon such judgment, shall be received in evidence without any proof of the judgment, execution or decree upon which they profess to have been made. We cannot understand why this statute did not authorize the admission of the deed in evidence. It is objected that the deed shows upon its face that it was executed by George Messersmith, late sheriff of Iowa county, and therefore this provision does not embrace it. But the statute makes no exception. It includes all deeds executed by the sheriff,, and was undoubtedly enacted in view of the provision which has existed since 1850, and which authorized a sheriff who-had begun to execute process before the expiration of his term of office, to proceed and execute the same. Sec. 87, ch. 10, R. S. 1849; sec. 106, ch. 13, R. S. 1858. It is also objected that the original decree of foreclosure only authorized Charles M. Mumford to make the sale. But this is a misconception of the decree. It obviously directs that the sale of the mortgaged premises should be made by the sheriff of the county. And the execution of the decree fell within the general provisions relating to such matters. The sheriff, George Messersmith, began to execute the decree in October, 1858, by advertising the mortgaged property for sale, and completed its execution after the expiration of his term of office, as he had the right to do under the statute.

It is further insisted that the record in the foreclosure action, which was introduced in evidence, showed that the sale, though made by the proper officer, was illegal and void, because it did not appear that an order pro confesso was entered. If no such order was in fact entered, it was at most only a technical irregularity, which did not and could not affect the validity of the sale. It is claimed that the failure to enter an order taking the bill as confessed deprived the court of power to proceed and render a decree of sale. But this view is so obviously incorrect, that no time need be spent in its refutation. The court acquired jurisdiction by the filing of the bill and the personal service of its subpoena upon tbe defendants. This is plain. And the omission to enter an order pro confes-so was not a jurisdictional defect, if such omission there was in fact.

It appears that the mortgaged premises were correctly described in the bill, and the decree ordered and adjudged that “'the said mortgaged premises mentioned in the bill of complaint ” in the cause should be sold, etc. In describing.the premises at the close of the decree, there was a mistake made in the use of the word “ north,” instead of the word “south.” The premises really embraced in the mortgage were the equal undivided half of the southeast quarter of section, etc., but by this error they were described as the equal undivided half of the northeast quarter. Before the mistake was discovered, a sale of the last mentioned tract was had, and the sale confirmed. Afterwards, on petition of the complainant, the original decree was corrected by the court, and the right tract was sold. This sale was confirmed, and the deed under which the plaintiffs seek to recover the premises was .executed by the officer who completed the execution of the process.

It is now said that the first sale satisfied and discharged the judgment. We fail to perceive any reason why such a consequence should follow. The first tract sold was a wrong tract, not embraced in the mortgage, and surely one not authorized to be sold by the foreclosure action. The sale was simply void, on account of the error in the description. It would be strange if the mistake were irremediable. We do not think it was. The court had power to correct such an obvious blunder in the proceeding. The defendant, though personally served with process, made default. Whether, under such circumstances, he was entitled to notice of the application to amend the original decree, is a question we shall not inquire into in this collateral action. The decree was entered in March, 1854 ; was amended on petition in March, 1857; and the sale irnder the corrected decree was made in April, 1859. This action on the sheriff’s deed, to recover possession, was commenced in September, 1878. In the meantime, tbe mortgagor bas remained in possession of tbe premises, and it is claimed that bis possession has been adverse, and that tbe statute of limitations has run in bis favor. We do not see any ground for saying that tbe possession of tbe defendant was adverse. Tbe general rule is, that tbe possession of tbe mortgagor is presumed to be in subordination to tbe title of tbe mortgagee or purchaser at tbe foreclosure sale, until tbe contrary is shown, and there is nothing to take this case out of that rule. Even an affirmative answer to tbe question put to the defendant, as to what tbe mortgagee said when he commenced the foreclosure suit, about there being nothing due on tbe mortgage, and that he did not intend to eject the defendant from the land (if this testimony had been admitted), would not have shown adverse possession in the defendant. We think the proposed testimony to prove this conversation, and that the mortgage debt was paid before tbe rendition of the decree, was all properly excluded. But there is no proof that the defendant claimed title in hostility to the title of the purchaser at the foreclosure sale; and the presumption is, that his possession was in subservience to the true title.

The only remaining point we deem it necessary to notice, is the objection that the plaintiffs’ remedy was by a writ of possession issued in the foreclosure action, and that they cannot maintain this suit. The plaintiffs claim the premises as children and heirs-at-law of David J. Seeley, deceased, who purchased at the foreclosure sale. We do not think the court would be warranted in issuing a writ of possession on their application in that action. But however this may be, we are very clear that the writ should not now issue, after the lapse of time which has intervened since the confirmation of the sale.

It follows from these views that the judgment of the circuit court is correct and must be affirmed.

By the (hurt. — Judgment affirmed.