Hayes v. Lienlokken
| Decision Date | 24 February 1880 |
| Citation | 4 N.W. 584,48 Wis. 509 |
| Parties | HAYES v. LIENLOKKEN |
| Court | Wisconsin Supreme Court |
Argued February 5, 1880
APPEAL from the Circuit Court for La Crosse County.
Ejectment. Defendant claimed under a mortgage sale of the land made by one Davis as surviving executor of one Mooney, the mortgagee by virtue of a power of sale contained in the mortgage. The evidence relied upon by the defendant to show the right of Davis as such executor, will appear from the opinion. The circuit court held the evidence insufficient, and rendered judgment for the plaintiff; from which the defendant appealed.
Affirmed.
For the appellant, there was a brief by Cameron, Losey & Bunn, and oral argument by Mr. Bunn.
For the respondent, there was a brief by M. P. Wing and G. C Prentiss, and oral argument by Mr. Wing and P. L. Spooner.
The defense in this case rests entirely upon the title acquired or claimed under the mortgage given by the plaintiff and her former husband to Linus H. Mooney, in 1858. It is practically conceded that Mooney was a resident and citizen of New Jersey. For the purpose of showing the death of Mooney, and the foreclosure of the mortgage by his executor by advertisement, under the statute, the defendant offered in evidence a record of the office of register of deeds for La Crosse county, which was the record of a certified copy of the probate of the will of Mooney. It was claimed on the part of the defendant, that this record of the copy of Mooney's will, and of its probate in New Jersey, was sufficient evidence of the death of Mooney and of the official character of the person who assumed the right to foreclose the mortgage by advertisement in this state. The final ruling of the circuit court as to the effect of this record was, that it did not establish these facts. The correctness of that ruling is the only question we have to consider. That it was essential to show the right or authority of the person foreclosing the mortgage to act in the matter, seems to us too plain for argument. If the rule were otherwise, then a mere stranger, one who had no earthly right to represent the owner of the mortgage, might go through the form of foreclosure by advertisement and sale, and give a good title.
The able counsel for the defendant would not argue in support of any such position. But it is claimed that the record offered was sufficient proof of the authority of the person foreclosing the mortgage to act as executor, by virtue of section 2295, R. S., which reads as follows: "When a will devising lands in this state, or any interest therein, shall have been duly proved and allowed in the proper court of any other of the United States, or the territories thereof, a copy of such will and of the probate thereof, duly authenticated, may be recorded in the office of the register of deeds of any county in which any such lands are situated, and when so recorded, and all such as may have heretofore been so recorded, shall be as valid and effectual to pass the title to such lands as if such will had been duly proved and allowed by the proper court in this state; and the record of such copy, or a duly certified...
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