Mueller v. Brigham

• Decision Date: 18 October 1881
• Citation: 53 Wis. 173,10 N.W. 366
• Court: Wisconsin Supreme Court
• Parties: MUELLER v. BRIGHAM AND ANOTHER, ADM'RS, IMPLEADED.

53 Wis. 173

10 N.W. 366

MUELLER

v.BRIGHAM AND ANOTHER, ADM'RS, IMPLEADED.

Supreme Court of Wisconsin.

Filed October 18, 1881.

Appeal from circuit court, Milwaukee county.

December 4, 1873, Joseph Cary sold the mortgaged premises in question to the defendant Carl Johann Ferdinand Lehfeldt, and took back a mortgage of $500 to secure a part of the purchase money, and which mortgage contained this stipulation: “This mortgage to be second lien on said premises, and stand after a mortgage executed this day by parties of the first part to Gustav Mueller,”--which mortgage to Cary was not recorded. The mortgage to Gustav Mueller, referred to in the stipulation, was executed by the same mortgagor for $1,000, loaned to him by the plaintiff, Gustav Mueller, December 4, 1873, and was recorded the same day. Lehfeldt mortgaged the same premises to the plaintiff for a further loan of $500, April 23, 1874, and for a further loan of $1,000, March 23, 1875; which two mortgages were duly recorded on the days on which they were respectively executed. In January, 1879, the plaintiff commenced an action to foreclose the three mortgages so executed to him, and judgment of foreclosure and sale was entered thereon August 4, 1879, but Joseph Cary, the owner of the purchase-money mortgage, was not made a party. March 18, 1880, Joseph Cary died, and soon thereafter the appellants were appointed administrators of his estate; and September 27, 1880, and after the premises had been advertised for sale by the sheriff upon said foreclosure judgment, but before such sale, they obtained an order to show cause why said judgment should not be opened and vacated, as to them, and they, as such administrators, be made parties defendant, and allowed to file the answer to the complaint, on the ground that the mortgage of $500 executed to the plaintiff April 23, 1874, and the mortgage of $1,000 executed to him March 23, 1875, were both subordinate and subject to the mortgage to Joseph Cary, and that the same were taken by the plaintiff with knowledge of the existence of said Cary mortgage, and that said Joseph Cary was not a party, and had no knowledge nor information of the existence of said action, nor the judgment entered therein, and that they had no such knowledge or information until a short time prior to the making of their petition, and upon that petition the court enjoined the sheriff's sale. November 22, 1880, that injunction was dissolved, and the sale ordered to proceed, and that $600 of the proceeds thereof be paid into court, subject to the further order of the court. Accordingly, the sheriff's sale was held November 27, 1880, when the property was sold to the plaintiff for $2,500, of which sum $600 was paid into court subject to the further order thereof. December 4, 1880, the sheriff's report of sale was filed and confirmed. The hearing of the order to show cause was continued until January 17, 1881, when the petitioners were made parties defendant, and relieved of the judgment as to their intestate, and their answer ordered to stand as an answer to the complaint, and that the $600 so paid into court be subject to the determination of the issue formed thereon, but in other respects the judgment should remain undisturbed, especially so far as it affected the premises and sale. After hearing the proofs upon that issue the finding of the court thereon was filed, and judgment thereon entered March 14, 1881, wherein and whereby the Cary mortgage was adjudged to...