Allen v. Elderkin
| Decision Date | 31 March 1885 |
| Citation | 22 N.W. 842,62 Wis. 627 |
| Parties | ALLEN v. ELDERKIN. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Walworth county.
Smith & Wheeler, for respondent.
A. S. Spooner and Pinney & Sanborn, for appellant.
This is an action of replevin, for about 131 bushels of oats. The plaintiff and respondent claims title to the oats as purchaser of the lands upon which the same were standing, at a foreclosure sale made on the twelfth day of August, 1882. The sheriff's deed upon such sale was dated on the day of sale; but the order confirming the sale was not made until the fourth of September, 1882. The appellant and defendant claims title to the oats as owner of the mortgaged premises, and the evidence on the trial shows that the oats were ripe, and had been cut, threshed, and removed from the mortgaged premises before the mortgaged sale was confirmed, on September 4, 1882. The learned circuit judge held that as the evidence showed that the oats were standing uncut on the land at the date of the sale, August 12, 1882, they belonged to the purchaser at the mortgage sale, and judgment was entered in favor of the plaintiff, and defendant appeals to this court. The learned counsel for the appellant claims that the circuit court erred in directing a verdict for the plaintiff.
The only question in this case is whether the title to the mortgaged property vests in the purchaser at a mortgage sale upon the day of sale and the execution of the deed to the purchaser, or upon the confirmation of the sale by the court. If the title vests on the sale and execution of the deed, then the circuit court properly directed a verdict for the plaintiff; but if it does not vest until after the confirmation of the sale, then the court should have directed a verdict for the defendant. Under the repeated decisions of this court a mortgage is a lien upon the real estate mortgaged, and not a conveyance of the title to such real estate. See Brinkman v. Jones, 44 Wis. 498-511; see cases cited on said page 511. Until foreclosure of this mortgage lien the title to the real estate mortgaged remains in the mortgagor, or his heirs, devisees, grantees, or assigns, and under the statute he is entitled to the possession and use of the mortgaged premises until after such foreclosure. Section 3095, Rev. St.; Loomis v. Wheeler, 18 Wis. 524. This being the nature of a mortgage under the laws of this state, it is clear the legislature has full power to determine how the lien of the mortgage shall be enforced and the lands mortgaged sold to satisfy such lien, and necessarily has the power to determine when the title to the property sold shall vest in the purchaser at the foreclosure sale. Section 3169, Rev. St. 1878, is clear and conclusive upon that question. It reads as follows: “Upon any such sale being made, the sheriff or referee making the same, on compliance with its terms, shall make, execute, and deliver to the purchaser a deed of the premises sold, setting forth each parcel of land sold to him and the sum paid therefor, which deed, uponthe confirmation of such sale, shall vest in the purchaser all the right, title, and interest of the mortgagor, his heirs personal representatives, and assigns, in and to the premises sold, and shall be a bar to all claim, right, or equity of redemption therein of and against the parties to such action, their heirs and personal representatives, and also against all persons claiming under them, subsequent to the filing of the notice of the pendency of the action in which such judgment was rendered; and the purchaser, his heirs and assigns, shall be let into the possession of the premises so sold on production of such deed, or a duly-certified copy thereof, and the court may, if necessary, issue a writ of assistance to deliver such possession.”
Under section 2 of rule 26 of the circuit court rules, the judgment in a foreclosure action must direct that the purchaser at the foreclosure sale shall be let into possession of the property after...
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Shuput v. Lauer, 81-550
...of Family Savings is consistent with the Gerhardt decision upon which this court relied in Family Savings and with Allen v. Elderkin, 62 Wis. 627, 22 N.W. 842 (1885), and Welp v. Gunther, 48 Wis. 543, 4 N.W. 647 (1880), upon which this court relied in For the reasons set forth, we do not re......
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In re The Ophir Trust
...interest (i.e., the right to redeem) until a foreclosure sale is confirmed pursuant to Wis.Stats. 846.165. See also Allen v. Elderkin, 62 Wis. 627, 22 N.W. 842 (1885); Shuput v. Lauer, 109 Wis.2d 164, 325 N.W.2d 321 (1982); Gerhardt v. Ellis, 134 Wis. 191, 114 N.W. 495 (1908). In In re Mill......
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Kalb v. Feuerstein
...of the plaintiffs has been upheld by the Supreme Court of the United States. Under the decision of this Court in Allen v. Elderkin, 1885, 62 Wis. 627, 22 N.W. 842, and Gerhardt v. Ellis, 1908, 134 Wis. 191, 114 N.W. 495, it is held that the rights of the defendants in the foreclosure procee......
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In re Lynch
...filing. One case seems to be directly in point. A foreclosure is not completed until the sale on foreclosure is confirmed. Allen v. Elderkin, 62 Wis. 627, 22 N.W. 842; Welp v. Gunther, 48 Wis. 543, 4 N.W. 647.... There can be no doubt but that the right to redeem persists at least until con......