Coe v. Manseau

• Decision Date: 13 January 1885
• Citation: 62 Wis. 81,22 N.W. 155
• Parties: COE, ADM'R, ETC., v. MANSEAU.
• Court: Wisconsin Supreme Court

62 Wis. 81

22 N.W. 155

COE, ADM'R, ETC.,

v.MANSEAU.

Supreme Court of Wisconsin.

Filed January 13, 1885.

Appeal from circuit court, Kewaunee county.

George W. Foster, for respondent.

W. H. Timlin, for appellant.

ORTON, J.

The plaintiff, as administrator, became the owner of two mortgages for the use of and in trust for the estate of one Ormon Coe, deceased, by assignment from one Fellows, the mortgagee of one, and from his wife, the mortgagee of the other, given by one Herman and wife upon the premises in dispute, and obtained judgment of foreclosure thereof for the sum of $762.59, including costs and fees; and before sale Herman and wife deeded the land to Fellows, and Fellows deeded the same to the plaintiff in fee, and the plaintiff went into possession thereof by his tenant, one Wilson, to whom he leased it for a short time, and then he contracted to sell the premises to one Dier for the sum of $800, to be paid thereafter; and a land contract was executed by him to Dier, providing for the execution of a deed in fee-simple to him on full payment, ($600 of which consideration still remains unpaid,) and Dier went into full possession of the premises, and so continues, as tenant at sufferance of the plaintiff under said contract. The defendant became the owner of two tax certificates upon the land, and proceeded to foreclose the same according to the statute, and made Fellows and others parties, but failed to make the said Dier and the plaintiff parties thereto, and obtained judgment of foreclosure. Thereafter the defendant, as plaintiff in said foreclosure suit, amended said proceedings by making said Dier a party thereto, and obtained judgment of foreclosure against him also. After said judgment the plaintiff redeemed the land from said taxes and certificates. The deed from Fellows to the plaintiff and the plaintiff's land contract with Dier were not recorded.

The prayer of the plaintiff is that the defendant either disclaims all right to the premises or release the same to the plaintiff, and for an injunction against the sale under his judgment of foreclosure. There was a lis pendens filed with the foreclosure of the two mortgages by the plaintiff, and the judgment of the foreclosure was duly entered of record, and judgment roll filed, but the assignment of the mortgages to the plaintiff was not recorded. This case is very voluminous on the record, and it was very fully and ably argued before this court, and many questions discussed which we do not consider material to its decision. The case on its merits rests really upon one main question, and that is, was the plaintiff bound by the judgment of foreclosure of the tax certificates, not having been made a party to the suit? The case is important in principle and somewhat complicated, but, after all, the simple matter of difference between the parties is one of costs. It is conceded that the plaintiff may redeem from the judgment of foreclosure before the sale. He has redeemed from the tax certificates regardless of the foreclosure.

The preliminary question, whether the plaintiff had the right to bring this suit when he could have made himself a party to the suit of foreclosure and resisted the judgment or had the same vacated, will be first disposed of. I know of no rule which requires the owner of the equity of redemption, not made a party to the suit of foreclosure, to ask leave to become a party so as to secure his right to redeem. The plaintiff redeemed the certificates after the judgment, and, if he was not bound by the judgment, how could the judgment obstruct his right to redeem? His right to bring this suit depends upon that redemption and his right to redeem. How could the plaintiff be bound to pay the costs of a suit to which he was not made a party? By being made a party at his own request after judgment, he might then be bound to pay them. He did not choose to do so, but brings this suit to prevent this threatened cloud upon his title, by a sale under a judgment to which he was not a party, based upon tax certificates which he has redeemed. His right to bring such a suit has been established by the decisions of this court. State Bank v. Abbott, 20 Wis. 570;Maxon v. Ayers, 28 Wis. 612; and other cases. Platto v. Deuster, 22 Wis. 482, and Endter v. Lennan, 46 Wis. 299, cited by the learned counsel of the appellant, were suits in equity in one court to enjoin the execution of process issued by another court, and not applicable to such a case as this.

The plaintiff relies somewhat upon the constructive notice to the defendant of his interest in the land, by the filing of lis pendens at the time of the foreclosure of the mortgages. According to his own testimony, he took a deed in fee-simple of the mortgaged premises, after judgment of foreclosure, for the benefit of the estate, the same as if he had bought them at the foreclosure sale for such purpose; and he sold the land afterwards to Dier for more than the amount of the judgment, costs, and fees. The intention would seem to be clear that the land was so deeded in satisfaction of the mortgage, and there appears to be no good reason for keeping it alive, or preventing a merger of the mortgage in the higher title in fee, according to the equitable rule of merger. Webb v. Meloy, 32 Wis. 319;Aiken v. Railway Co. 37 Wis. 469. The plaintiff must therefore rely upon his title in fee for his right of redemption of the outstanding tax certificates upon the land, and to be made a party to the suit for their foreclosure.

It is contended by the learned counsel of the appellant that by the plaintiff's sale to Dier he parted with his interest in the land, and Dier became the owner, and occupied the equitable relation of mortgagor to the plaintiff as mortgagee, and that making Dier a party was sufficient. If that is so, it ends the case. If he had no interest in the land so as to be a proper party to the foreclosure, he, of course, had no right to redeem from the tax certificates; and if he had made himself a party, he could not even redeem from the judgment. It is too clear for argument that the plaintiff was the owner in fee of the land, and that Dier had only an equitable interest in it; and his equitable relation to Dier, as the mortgagee, as a mere analogy to define their relation to each other, does not affect his legal title as to third persons. Nearly the whole of the consideration of Dier's purchase remains unpaid, with the interest thereon. If the whole had been paid, and Dier entitled to a deed, still, the plaintiff, as owner, most certainly could redeem the land from tax sales, in order to convey to Dier a clear title by a warranty deed in fee according to his contract. This, then, being the attitude of the plaintiff and Dier, whether Dier could have redeemed, or was a necessary or proper party to the suit of foreclosure, is immaterial. The plaintiff clearly had the right of redemption from tax sales made long before he contracted to sell to Dier, and was a proper party to the foreclosure; and the only question remaining is the important one in the case, whether the defendant, as plaintiff in the foreclosure suit, had notice of the plaintiff's interest, either constructive or actual, or is presumed to have had notice so as to entitle him to be made a party to said suit, in order to be foreclosed of his right to redeem the tax certificates. The defendant had no constructive notice by registration of the plaintiff's title, and the circuit court found that he was not informed by any one of it; and we think that such finding was correct. When the defendant commenced his suit of foreclosure, Dier was in full, open, and notorious possession of the land under his contract. This was deemed by the defendant sufficient notice to himself of Dier's interest in it to make him a party, even by amendment of the judgment. Was Dier's possession notice, also, of the plaintiff's interest? Dier's possession was sufficient to put the defendent upon full inquiry as to his right; and he is presumed to have had actual notice of just the right he had, and the...