Hayes v. Frey

• Decision Date: 14 March 1882
• Citation: 54 Wis. 503,11 N.W. 695
• Court: Wisconsin Supreme Court
• Parties: HAYES v. FREY AND OTHERS.

54 Wis. 503

11 N.W. 695

HAYES

v.FREY AND OTHERS.

Supreme Court of Wisconsin.

Filed March 14, 1882.

Appeal from circuit court, La Crosse county.

M. P. Wing and G. C. Prentiss, for appellant.

Cameron, Losey & Bunn, for respondents.

TAYLOR, J.

This was an action of ejectment brought by the appellant against the several defendants to recover the possession of real estate in the city of La Crosse, occupied by them. The appellant claims title to a tract of land, containing about 13 1/3 acres, which is described in the complaint as the S. 1/3 of the S. W. 1/4 of the N. E. 1/4 of section five, (5,) in township 15 N., range seven (7) W., and known as lot 4 of Rublee & Gillett's addition to the city of La Crosse. The respondents claim in severalty separate lots in said addition, and they served their respective answers.

The defendants and respondents claim title under a mortgage given upon the tract of land above described by F. M. Rublee and Sarah W. Rublee, his wife, (now Sarah W. Hayes,) the plaintiff and appellant, to Limes H. Mooney, of the county of New York and state of New York, dated July 28, 1858, and recorded August 26, 1858, in volume 5 of mortgages, pages 391-395, in the office of the register of deeds of La Crosse county. The evidence on the part of the appellant shows that she was seized in fee as the absolute owner of said land on the sixth day of October, 1856; and if her title was ever divested it was by virtue of the mortgage aforesaid and the proceedings taken to foreclose the same, The principal controversy in the case arises upon the foreclosure proceedings taken by virtue of said mortgage. On the part of the appellant it is contended that the proceedings which were taken under the statute to foreclose by advertisement without action, under the power of sale contained in the mortgage, are void for irregularity and do not divest the appellant and plaintiff of her title. The appellant's counsel also raise a question upon the practice in this case, which they claim should reverse the judgment. There had been a previous trial in this action with one of the defendants, John Lieulokken, who had answered separately, and who had procured a separate trial, apart from the defendants against whom the action was tried in this case. In the trial against Lieulokken the plaintiff had judgment in her favor. From such judgment Lieulokken appealed to this court and the judgment was affirmed. See 48 Wis. 509; [S. C. 4 N. W. REP. 584.]

When the action now under consideration was called for trial the plaintiff objected to proceeding therein-- First, upon the ground that the record in the action was in the supreme court, and had not as yet been remitted to the circuit court; and, second, on the ground of the absence of some of the plaintiff's witnesses. The plaintiff's objection and motion were overruled and denied, and exceptions were duly taken. We think there was no error in directing the trial to proceed, notwithstanding the original records and papers in the action had been sent to this court on the appeal taken from the judgment in favor of plaintiff against Lieulokken, and still remained in this court. The action had never been tried as to the defendants, in whose favor the present judgment is entered, and as to them the action had not been removed from the circuit court by appeal to this court. The case had been tried only as to Lieulokken, upon an order granting him a separate trial as to the parcel of land claimed in severalty by him, and his appeal from the judgment against him to this court could not divest the circuit court of jurisdiction of the case as to the other defendants. The fact that the original pleadings were in this court, if such was the fact, when the action was called for trial, was not an inseparable objection to proceeding therein. This want of the original pleadings could easily be supplied by furnishing copies thereof for the use of the court on the trial. Whether the action should have been continued upon the motion to continue for want of witnesses was a matter addressed to the discretion of the court, and we see no reason for holding that such discretion was not properly exercised in this case.

The learned counsel for the appellant have taken many exceptions which relate to the effect of certain conveyances made after the foreclosure sale from the purchaser at such sale to the present occupants, and as to the question of the right of the defendants to claim as mortgagees in possession in case the foreclosure sale should be held void; and upon the part of the respondents the same questions are discussed, as well as the question of losses on the part of the appellant. As we have concluded that the defendants by their proofs established a valid foreclosure of the mortgage, it becomes unnecessary to discuss the questions which arise upon matters occurring after the mortgage sale, and the conveyance thereunder. If the sale and deed in pursuance thereof are not void, then the title of the plaintiff is divested, and as to her and her rights it is immaterial while the title still remains in the purchaser at the mortgage sale, or in the defendants. Her action fails with the failure of her title.

Upon the main question the appellant's attorneys, in their printed brief and argument, object to the introduction of the mortgage as evidence because it was not properly acknowledged, as prescribed by section 12, c. 59, Rev. St. 1849. There are two sufficient answers to this objection: First, section 12, c. 59, Rev. St. 1849, was repealed by section 2, c. 229, Laws 1850, and it was impliedly repealed as to all real estate conveyances made by a married woman of her separate estate by section 3, c. 44, Laws 1850,--“An act to provide for the protection of married women in the enjoyment of their own property.”

The mortgage having been properly executed by the plaintiff, and recorded in the proper office of the register of deeds, the only remaining question of importance to the plaintiff in this action is, was it properly foreclosed by proceedings under chapter 154, Rev. St. 1858, which was the law in force upon that subject when it is claimed it was foreclosed? This statute was enacted to regulate the execution of the power of sale given to the mortgagee in the mortgage, and to declare its effect when so executed. It must be admitted that no foreclosure can be had under such power by advertisement without suit, unless the proceedings are taken in substantial compliance with the requirements of that chapter. To entitle a party to foreclose under it the following facts must be shown to exist: (1) The mortgage to be foreclosed must contain a power of sale upon default being made in any of the conditions thereof; (2) before any steps are taken under the statute it must appear that some default has occurred in a condition by which the power to sell becomes operative; (3) no action or proceeding shall have been instituted at law to recover the debt then remaining, secured by the mortgage, or if any such action has been instituted, the same has been discontinued, or that an execution upon the judgment rendered therein has been returned unsatisfied in whole or in part; (4) that the mortgage containing the power of sale has been duly recorded, and if it shall have been assigned, that all the assignments thereof have been recorded.

It is not disputed but that the mortgage foreclosed in this case contained a power of sale, nor that a default in the payment of the money secured thereby had been made before the proceedings to foreclose were commenced, nor that the mortgage itself was duly recorded in the proper office. But it is insisted by the learned counsel who argued this case orally before this court, that neither the proceedings in the foreclosure nor the proofs upon the trial show the third prerequisite, viz., that no action at law had been commenced to recover the debt. We are inclined to hold that where the proceedings are otherwise regular, they cannot be avoided for this reason, unless the fact that an action had been commenced to recover the debt secured by the mortgage is made to appear on the trial, in which it is sought to avoid the effect of the foreclosure by affirmative evidence. The party who asserts this right under the foreclosure sale is not bound to make the negative evidence. This court, in Vincent v. Starks, 45 Wis. 458, in giving construction to the act which authorized a foreign guardian to sue in this state on filing his letters of guardianship when no guardian has been appointed in this state, say: “But the condition that no guardian has been appointed in this state is a negative condition which it would be practically impossible to prove, even presumptively or prima facie, if made an issuable fact by a denial of such allegation. The fact that a guardian had been appointed in this state is an affirmative allegation, and if proved would establish the incapacity of the foreign guardian to sue in this state; and the onus of proving it would by all rules of pleading be upon the party making the allegation; and it would be susceptible of proof.” This language is peculiarly applicable to the question in this case. The allegation on the part of the plaintiff is that the proceedings to foreclose are void, because it does not appear that the prerequisite that no action to recover the mortgaged debt had been commenced when such proceedings were instituted. The statute does not require that the notice of sale or any other proceeding in the case shall show that fact. The plaintiff might perhaps defeat the foreclosure proceedings by proving affirmatively that such an action had been commenced and was pending when the proceedings to foreclose were commenced; but to do so, we think, according to the rules of evidence, the plaintiff should produce the evidence. The case cited by the learned counsel from 4 Ind. 444, is quite different in its circumstances from the case at bar, and we...