Main v. Bosworth

• Decision Date: 05 November 1890
• Citation: 77 Wis. 660,46 N.W. 1043
• Parties: MAIN v. BOSWORTH ET AL.
• Court: Wisconsin Supreme Court

77 Wis. 660

46 N.W. 1043

MAIN

v.BOSWORTH ET AL.

Supreme Court of Wisconsin.

Nov. 5, 1890.

Appeal from circuit court, Outagamie county.

The action is in equity to remove a cloud upon the title to certain lands of the plaintiff. The case is as follows: On December 31, 1888, the plaintiff, W. D. Main, then being the owner of a certain parcel of land in Outagamie county, which he occupied as his homestead, conveyed the same by deed of warranty to his brother, Gilbert S. Main. Such conveyance is absolute on its face. The wife of the plaintiff joined therein. The conveyance was executed without consideration, pursuant to a parol agreement between the parties thereto that the grantee, Gilbert S., should execute a mortgage thereon to secure a loan for $600 for his own benefit, and should then reconvey the land to the plaintiff. Gilbert S. effected the loan, and executed a mortgage therefor on such land. A few days later the defendants Bosworth, Hopkins & Hopkins (who were partners) filed in the office of the clerk of the circuit court of Outagamie county a transcript of a judgment recovered by them in 1884, in the circuit court of Waupaca county, and issued an execution thereon to the defendant the sheriff of Outagamie county, who levied upon, advertised, and, on May 24, 1889, sold, the land in question under the execution for a sum apparently sufficient to pay the judgment, interest, and costs. The defendant B. B. Hopkins was the purchaser at such sale, and a certificate thereof was issued to him, a duplicate of which was duly filed in the office of the proper register of deeds. On June 21, 1889, Gilbert S. Main reconveyed the land to the plaintiff pursuant to such parol agreement. The plaintiff, during the whole time of these transactions, remained in the actual and exclusive possession of the land. The foregoing facts (and some others not material to the determination of the case) appear from the pleadings, proofs, and findings of the court. The sheriff made no defense to the action. The relief demanded in the complaint is that the execution sale, the certificate thereof, and any apparent lien of the judgment and sale upon the land, be set aside, vacated, canceled, and removed. A trial of the action resulted in a judgment for the plaintiff for the relief prayed. The defendants Bosworth, Hopkins & Hopkins appeal from the judgment.F. C. Weed and Winkler, Flanders, Smith, Bottum & Vilas, for appellants.

John Bottensek, for respondent.

LYON, J., ( after stating the facts as above.)

If the judgment of the appellants became a lien upon the land in question, on filing the transcript thereof in Outagamie county, it was only a lien upon the actual interest therein of Gilbert S. Main, the judgment debtor. Hence it is necessary to determine what that interest was. This question is not affected by the registry laws, for a judgment creditor, who purchases at his own execution sale in satisfaction of his judgment, takes only the actual interest of the judgment debtor in the land so purchased, without regard to the state of the record title. The lien of a judgment which the statute gives (...