Mihills Manufacturing Company v. Camp
| Decision Date | 30 March 1880 |
| Citation | 5 N.W. 1,49 Wis. 130 |
| Parties | THE MIHILLS MANUFACTURING COMPANY v. CAMP, Trustee, etc., and another |
| Court | Wisconsin Supreme Court |
Argued March 16, 1880
APPEAL from the Circuit Court for Fond du Lac County.
Sec. 1 ch. 195, Laws of 1859, provided that, in case of a sale of mortgaged lands under a judgment of foreclosure, it should be the duty of the sheriff or other officer making the sale within ten days thereafter, to execute to the purchaser a certificate of sale in writing, under seal, setting forth each tract or parcel of the lands sold, the sum paid therefor, and the time when the purchaser would be entitled to a deed thereof unless the land should be redeemed as afterwards provided in the act; and such officer was also required, within ten days after the sale, to file in the office where the mortgage was recorded, a duplicate of such certificate, signed by him.
Sec. 2 of the act provided, that it should be lawful for the mortgagor, his heirs, personal representatives or assigns, at any time within one year after the sale, to redeem such lands, or any distinct tract or parcel thereof separately sold, by paying to the purchaser, his personal representatives or assigns, or to the officer making the sale or his successor in office, the sum of money for which the same was sold, with interest at the rate of ten per cent. per annum from the date of sale; that thereupon the sale and certificate should become void; that the bail of such officer should be responsible for the full payment to the purchaser or his legal representatives of all moneys so received by such officer; and that the officer should execute to the person so redeeming a certificate under seal of the fact of such redemption, which should operate as a discharge of the mortgage and of all right, title and interest acquired by the purchaser at the sale, and should vest the title of the lands redeemed in the person lawfully entitled to the same.
Sec. 3 of the act provided, that if, after the expiration of a year from the sale, it should appear that no person authorized so to do had redeemed the premises or any portion thereof as aforesaid, it should be the duty of the officer making the sale, or his successor in office, to execute to the purchaser deeds of the lands sold, etc.
Sec. 4 of the act provided, that any person holding "a subsequent mortgage or other incumbrance on the premises sold, or any separate parcel or lot thereof," should be "entitled to the same privileges of the redemption of the mortgaged premises that the mortgagor or his legal representatives might have had, or of satisfying the prior mortgage;" and that he should, "by such satisfaction, acquire all the benefits to which such prior mortgagee was or might have been entitled."
Sec. 1 ch. 92 of 1872, amended this section by adding that any person who might have a lien on the premises sold, or any separate lot or parcel thereof, at any time before the expiration of a year after the sale, subsequent to the lien of the mortgage foreclosed, might acquire the interest of the original purchaser at such sale, by paying within said year the sum of money paid by such purchaser for the said premises, or for such separate lot or parcel thereof as might be covered by his lien, if separately sold, with interest at ten per cent. per annum from the time of sale; that such interest might be acquired and such payment made in the manner and with the effect provided for acquiring rights of purchasers under execution sales, in ch. 134, R. S. 1858, and the acts amendatory thereto; and that the interests so acquired might be again acquired by other holders of like liens, in like manner and with like effect as provided for in said ch. 134, R. S. 1858: [1] provided, that in case of liens other than those created by Judgments for moneys only, a certified copy of the judgment or instrument showing such lien should be presented to and left with the officer or purchaser, together with a copy of all the assignments thereof, verified by affidavit, and an affidavit of the holder of such lien, his attorney or agent, stating as near as might be the true sum secured by and owing thereon, at the time of claiming such right to purchase. There was also a provision in said sec. 1 of the act of 1872, that nothing therein contained should impair the right to redeem said premises under secs. 2 and 4 of the aforesaid act of 1859. There was a further provision, that the person who, having acquired the purchaser's interest, should be the holder thereof at the expiration of said year, should be entitled to a conveyance of the premises, or of the portion thereof held by him, which should be executed by the officer, and should have the effect prescribed in section 3 above recited.
This was an action to have a sheriff's deed of certain lots in the city of Fond du Lac, executed by the sheriff of Fond du Lac county, December 15, 1876, to the defendant Hoel H. Camp as trustee for John Forshee, George T. Bryant and others, declared null and void, and cancelled of record, or to have said grantee decreed to quit-claim and release to the plaintiff the lands included in said deed.
The findings of fact by the circuit court were substantially as follows:
1. The plaintiff is, and has been since November 4, 1874, a corporation engaged in carrying on, at the city of Fond du Lac, the business of lumbering, logging, manufacturing logs, lumber, shingles, sash, doors and blinds, and selling the same; and, for the purposes of such business, has owned and used, from the date aforesaid, and now owns in fee, five lots numbered from six (6) to eleven (11), and lots 47, 55 and 56, in block 12 of the original plat of said city. [This is the property here in dispute.]
2. On the 4th of October, 1871, before plaintiffs acquired title to said lands, Uriah D. Mihills and Guindon N. Mihills, being then the owners in fee, executed to one Merrick and one Stickney a mortgage of said premises, with other lands belonging to Uriah D. Mihills and situate in Sheboygan county. On the 5th of August, 1873, these Sheboygan county lands were sold for $ 3,000, and conveyed by Uriah D. Mihills to one Marsh, who assumed to pay, as part of the purchase price, the above mentioned mortgage to Merrick and Stickney; and the premises so conveyed to Marsh were reasonably worth the amount of the mortgage so assumed.
3. After said sale and conveyance to Marsh, plaintiff, with knowledge thereof, and relying upon Marsh's agreement to pay the Merrick and Stickney mortgage, purchased for full value, from Uriah D. and Guindon N. Mihills, the Fond du Lac property first above described.
4. On the 2d of December, 1873, Uriah D. and Guindon N. Mihills, with their wives, executed to the defendant Hoel H. Camp, as trustee, etc., a mortgage dated December 22, 1873, to secure the following notes, all dated December 1, 1873, and due January 1, 1875, with annual interest at ten per cent., made by said mortgagors, by the description of U. D. Mihills & Co., for value, to wit: One to John Forshee for $ 1,000; one to George T. Bryant for $ 4,000; one to Booth, Hunneman & Co., for $ 1,000; one to Irving M. Bean, for $ 1,500; one to J. F. Brewster, for $ 1,000; one to S. M. Curtis, for $ 1,200; one to F. S. Blodgett, for $ 1,000; and one to A. Stevely, for $ 3,000. The mortgage was made to Camp as trustee, for the payees of said notes, ratably; and it included lots 7, 8, 9, 10, 46, 47, 55 and 56, in block 12, of the original plat of Fond du Lac above mentioned, and also certain lands situate in Marathon county. This mortgage was duly recorded in Fond du Lac county, December 31, 1873.
5. No part of the mortgage to Merrick and Stickney having been paid, said mortgage was foreclosed (by one Partridge, the assignee thereof) in an action commenced July 14, 1875, in which the present plaintiff and the defendant Camp, as trustee, etc., were joined with others as defendants; and on the 11th of December, 1875, the whole of the mortgaged premises were duly sold by the sheriff to one Elihu Colman for $ 5,867.30, and proper certificates of the sale were delivered and filed.
6. On the 3d of February, 1876, Elihu Colman sold, transferred and assigned the certificate of the above mentioned sale, by an instrument entitled to record, to Colwert K. Pier and Robert A. Baker, each taking an equal undivided half thereof. On the 13th of March, 1876, said Pier and Baker, then being the owners of said certificate, by an instrument dated on that day and entitled to record, released the Fond du Lac property described in the first finding, from the lien of said certificate, and granted the same to the present plaintiff "released and discharged of all charge, liability and claims, in equity or otherwise, by reason of the sale under the Merrick and Stickney mortgage, and of the judgment upon which it was made, and of the original mortgage foreclosed and the debt and moneys secured thereby." Since the date of such release and conveyance, the present plaintiff has retained said instrument as a muniment of title to the property, of which it then was and still is in the actual occupation.
7. The assignment from Colman to Baker and Pier was recorded in the registry of deeds of Fond du Lac county on the 11th of December, 1876. at 8 3/4 o'clock A. M.; and the release to this plaintiff from Baker and Pier was recorded in the same office on the same day at 4 1/3 o'clock P. M.
8. On the 3d of October, 1876, the certificate of sale so assigned to Pier and Baker was, by an instrument in writing indorsed thereon, assigned to one Henry M. Hamilton, who resided at Mankato, Minnesota, and was engaged in the business of banking at that place; but this assignment in terms "excepted from the lien of the certificate and the judgment under...
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