Crowns v. Forest Land Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: BARDEEN
• Citation: Crowns v. Forest Land Co., 99 Wis. 103, 74 N.W. 546 (Wis. 1898)
• Decision Date: 22 March 1898
• Parties: CROWNS v. FOREST LAND CO.

99 Wis. 103

74 N.W. 546

CROWNS

v.FOREST LAND CO.

Supreme Court of Wisconsin.

March 22, 1898.

Appeals from superior court Milwaukee county; J. C. Ludwig, Judge.

Action by George H. Crowns against the Forest Land Company. From a judgment of foreclosure and a judgment for deficiency, defendant appeals. Affirmed.

Action to foreclose a mortgage. The answer sets up a plea in abatement to the effect that the action was not brought in the name of the real party in interest; that plaintiff had no interest in the mortgage; and that Otto D. Bjorkquist was the real party in interest. Substantially the same facts are set up by way of defense. There is also a further defense that the mortgage was given for land purchased by defendant from one Otto D. Bjorkquist, and that the same was taken in the name of plaintiff for the unlawful purpose of covering and concealing the same from the assessors to escape taxation. On motion the answer was stricken out as frivolous, and judgment was entered for plaintiff. Afterwards, and in due time, the property was sold to one Otto D. Bjorkquist, the sale confirmed, and a judgment for deficiency was entered against the defendant. The defendant appeals from both the judgment of foreclosure and the judgment for deficiency. Upon its appearance in this court, the respondent moved to dismiss both appeals on the ground that the notices of appeal and undertakings had not been served upon Otto D. Bjorkquist, the purchaser at the foreclosure sale. Both appeals and motions will be disposed of in one opinion.Nath. Pereles & Sons and C. F. Hunter, for appellant.

Turner, Bloodgood & Kemper, for respondent.

BARDEEN, J. (after stating the facts).

First, as to the motions to dismiss the appeals. It is true that a purchaser at a foreclosure sale becomes a quasi party to the suit, as was held in Ward v. Clark, 6 Wis. 509. It is also true that the purchaser at such sale was held to be an “adverse party,” within section 3049, Rev. St., so as to require the service of a notice of an appeal from the order confirming the sale, as laid down in Rogers v. Shove (Wis.) 73 N. W. 989. But after the sale has been confirmed the right of a purchaser, if a stranger to the record, becomes absolute, and his title will not be disturbed upon a reversal of the judgment. Jesup v. Bank, 15 Wis. 604;Corwith v. Bank, 18 Wis. 560; Ror. Jud. Sales, § 576. The “adverse party” mentioned in the statute is one who has an interest adverse to the reversal of the matter appealed from. When the interest of the purchaser at the foreclosure sale has so ripened into title that subsequent proceedings in the case cannot affect his rights, then he is in no sense the “adverse party” contemplated by the statute. But, should it be thought otherwise, the fact of the motion to dismiss the appeals having been made by respondent on his own behalf, and not on behalf of the purchaser at the foreclosure sale, would be sufficient reason for denying the motion. The purchaser being a quasi party to the suit, any proceeding in the case that would affect his interests, made without notice to him, cannot work prejudice to his rights. The respondent is in no sense a guardian of his interests, and cannot take advantage of the failure of appellant to advise the purchaser of subsequent proceedings in the case, if a notice, such as is mentioned, should be deemed essential. Discussing the appeals on their merits, it seems quite clear that the ruling of the court in striking out the answer as frivolous was a very proper exercise of judicial power. The appellant having pleaded the same matter both in abatement and in bar of the action, by every analogy of practice the latter overrides the former. Hooker v. Green, 50 Wis. 271, 6 N. W. 816. That portion of the answer which alleges that respondent gave no...