Smith v. Ford

• Decision Date: 02 September 1879
• Parties: SMITH v. FORD
• Court: Wisconsin Supreme Court

2 N.W. 134

48 Wis. 115

SMITH v. FORD

Supreme Court of Wisconsin

September 2, 1879

Argued August 29, 1878

APPEAL from the Circuit Court for Rock County.

Action to quiet title to land. Plaintiff appealed from the judgment.

The cause was first argued at the January term, 1878; and by order of the court certain questions were reargued at the August term, 1878.

Affirmed.

For the appellant, there were separate briefs by Bennett & Sale and A. Hyatt Smith, and oral argument by Mr. Smith. They argued among other things, as follows: 1. That defendant was barred by the foreclosure judgment. (1) The circuit court for Rock county in this state, by which that judgment was rendered being a court of general jurisdiction, is presumed to have adjudicated the question of its own jurisdiction in the foreclosure suit, as to all the judgment defendants; and such adjudication is conclusive upon them all, in the absence of an appeal. Jackson v. Astor, 1 Pinney, 137; Vilas v. Reynolds, 6 Wis. 214; Hungerford v Cashing, 8 id., 324; Grignon's Lessee v. Astor 2 Howard, U.S., 319; Secrist v. Green, 3 Wall., 744; Adams v. Barnes, 17 Mass., 365; Davenport v. Bartlett, 9 Ala., 179; Grier v. McLendon, 7 Ga., 362. (2) The foreclosure judgment, having been rendered by a court of competent jurisdiction, cannot be attacked collaterally in any other court for irregularity. Mobley v. Mobley, 9 Ga., 247; Wiley v. Kelsey, id., 117; Bridges v. Nicholson, 20 id., 90; Hampson v. Weare, 4 Iowa, 13; Kerr v. Leighton, 2 G. Greene, 196; Wright v. Marsh, id., 94; Barney v. Chittenden, id., 165; Patterson v. The State, id., 492; McIlvoy v. Speed, 4 Bibb, 85; Estep v. Watkins, 1 Bland, 486; Ranoul v. Griffie, 3 Md., 54; Davis v. Helbig, 27 id., 452; Cochran v. Davis, 20 Ga., 581; Greenlaw v. Kernahan, 4 Sneed, 371; White v. Albertson, 3 Devereaux' Law, 241; Williams v. Woodhouse, id., 257; Lyles v. Brown, Harper, 31; Sutherland v. DeLeon, 1 Texas, 250; Perryman v. The State, 8 Mo., 208; Billings v. Russell, 23 Pa. 189; Moore v. Robison, 6 Ohio St., 302; Cochran v. Loring, 17 Ohio, 409; Newman v. Cincinnati, 18 id., 323; Obert v. Hammel, 18 N. J. Law (3 Har.), 73; Simpson v. Hart, 1 Johns. Ch., 91; Murray v. Murray, 5 id., 60; Wesson v. Chamberlain, 3 N.Y. 331; Lampry v. Nudd, 9 Foster, 299; White v. Landaff, 35 N. H., 128; Banister v. Higginson, 15 Me. 73; Woodman v. Smith, 37 id., 21. (3) If Mead had been made a party to the creditor's suit, a question of conflict of jurisdiction between the two courts over the subject matter of the two suits might have been raised and determined on plea of suit pending, made by Bowen & Co., in the foreclosure suit. But as Mead was not a party to the creditor's bill, his foreclosure could not be interfered with, nor his judgment and sale prevented, except by an issue on the merits. Elliott v. Peirsoll, 1 Pet., 340. (4) The conclusive character of the judgment of foreclosure relates to every point which was either expressly or by necessary implication in issue, and which was decided or must necessarily be decided in order to support the decree. Bank of U. S. v. Beverly, 1 How., U.S., 134; Parrish v. Ferris, 2 Black, 606; Town, v. Lamphere, 34 Vt., 365; Church v. Chapin, 35 id., 223; Shears v. Dusenbury, 13 Gray 292; Wright v. Butler, 6 Wend., 284; Embury v. Conner, 3 Coms., 522; Doty v. Brown, 4 id., 72; Castle v. Noyes, 14 N.Y. 329; Campbell v. Ayres, 1 Clarke (Iowa), 258; Board of Supervisors v. Railroad Co., 24 Wis. 123-5; Van Pelt v. Kimball, 18 id., 362; 1 Greenl. Ev., 534; 2 Smith's L. C., 594, 791, 795, 797, 809, 810. (5) The question of priority of incumbrances may be, and to prevent multiplicity of suits of necessity must be, raised and determined in a foreclosure suit; and this involves the necessity of determining the validity of conflicting incumbrances in such suits. Clason v. Shepherd, 6 Wis. 374; 10 id., 356; Hathaway v. Baldwin, 17 id., 616; Pelton v. Farmin, 18 id., 222; Palmer v. Yager, 20 id., 91; Board of Supervisors v. Railroad Co., supra; Corning v. Smith, 2 Seld., 84; Freeman v. Schroeder, 43 Barb., 618; Frost v. Koon, 30 N.Y. 428; Lewis v. Smith, 9 id., 503. Upon the question of priority the decree will be held valid, where collaterally called in question, whether the complaint contains a prayer to that effect or not. Board of Supervisors v. Railroad Co., supra. (6) After a sale upon foreclosure, the validity of the mortgage cannot again be called in question. Gest v. Flock, 2 N. J. Eq., 108; Lansing v. Goelet, 9 Cow., 346. The purchaser at such sale takes the complete title of the mortgagor and mortgagee; and the parties to the foreclosure suit and their privies are estopped from disputing such title. White v. Evans, 47 Barb., 179; Holden v. Sackett, 12 Abbott Pr., 473; McGee v. Smith, 16 N. J. Eq., 462; Carter v. Walker, 2 Ohio St., 339; Finney v. Boyd, 26 Wis. 366; Tay. Stats., 1701, § 4; Laws of 1869, ch. 40. (7) A purchase under a decree foreclosing a mortgage is not affected by the pendency of a suit to which the mortgagee was not a party. Fenwick v. Macey, 2 B. Mon., 469; Hoyt v. Jones, 31 Wis. 389. (8) The foreclosure suit was a proceeding in rem, and, having been conducted according to the law of this state, is conclusive as to the condition of the property in suit, and the rights and equities of all persons claiming title thereto under A. Hyatt Smith. Story's Conflict of Laws, §§ 549-52, 591-3; Thomas v. Lawson, 21 How., U.S., 331; Phelps v. Holkey, 1 Dallas, 261; Bissell v. Briggs, 9 Mass., 467-9; Nash v. Church, 10 Wis. 303. 2. That plaintiff was not bound by the judgment in the creditor's suit. (1) The rights of Mead, under whom plaintiff claims, were expressly reserved by the decree in that suit. (2) Mead not having been a party to that suit, his rights could not have been affected by any form of decree therein. [To this general proposition numerous cases were cited.] (3) A trustee is a necessary party to a suit in regard to the trust property, and the court can take no jurisdiction of the legal title without making him a party. Phipps v. Tarpley, 24 Miss., 597; Marble v. Whaley, 33 id., 157; Cassiday v. McDaniel, 8 B. Mon., 519; Helm v. Hardin, 2 id., 231; Ashton v. Atlantic Bank, 3 Allen, 217. The cestui que trusts are not necessary parties to a suit in equity in which a mortgage for their benefit is brought in question. The trustees, as owners of the legal estate, are the proper parties. R. S. 1858, ch. 84, sec. 16; New Jersey, etc., Co. v. Ames, 12 N. J. Eq., 507; Sill v. Ketchum, Harr. (Mich.), 423. In Mead v. Walker, 15 Wis. 449, this court decided that in a case relating to this trust, Mead is a necessary party. In the absence of the legal owner of the land, the federal court in the creditor's suit had no jurisdiction of the subject matter. Hoyt v. Jones, 31 Wis. 389; Van Epps v. Van Epps, 9 Paige, 238; Story's Eq. Pl., § 427.

For the respondent, there were separate briefs by Cassoday & Carpenter, his attorneys, and A. A. Jackson, of counsel; and also a joint brief and oral argument by Messrs. Cassoday and Jackson. They contended, among other things, 1. That the decree of the federal court on the creditor's bill was valid and effectual, although the trustee was not a party thereto. (1) The proceedings in that suit were regular under the act of congress of February 28, 1839 (R. S. of U.S. sec 737), and Equity Rules 47-50 of the federal court; and these merely rendered definite and certain what was before discretionary in a court of equity. Bank v. Stafford, 12 How., U.S., 327, 341-3; Elmendorf v. Taylor, 10 Wheat., 152, 161-8. The saving clause in the decree was inserted merely in conformity with the statute and rules above cited and the practice of the federal courts. (2) The rules and statute do not authorize the court to divest a person of an actual beneficial title in himself, without making him, or those privy in interest with him, parties; but under them the court may divest the actual parties of all equitable or legal title or interest in the subject matter of the suit, if that be within the jurisdiction of the court. (3) Courts of equity generally require the presence of all persons interested in the property involved in the litigation; but sometimes they proceed for and against cestui que trusts without the trustee who has no beneficial interest in the subject matter, even where there is no difficulty in obtaining jurisdiction. Cestui que trusts, however, being the persons whose beneficial interest is affected, must always be before the court, except in very rare instances, where a peculiar trust is created or some particular statute gives authority to proceed without them by reason of privity of interests. In support of this view, counsel cited and commented at length upon the following authorities: 1 Daniell's Ch. Pr., 197-9, 213-14; Edmeston v. Lyde, 1 Paige, 637; McNab v. Young, 81 Ill., 11; James v. Railroad Co., 6 Wall., 752; Payne v. Hook, 7 id., 425; Batesville Institute v. Kauffman, 18 id., 151-4; Bank v. Seton, 1 Peters, 299; Story v. Livingston, 13 id., 359; Mallow v. Hinde, 12 Wheat., 193; Boon's Heirs v. Chiles, 8 Peters, 532; 10 id., 177; Harrison v. Urann, 1 Story C. C., 64; West v. Randall, 2 Mason, 181, 192-3, 195-6; Joy v. Wirtz, 1 Wash. C. C., 517; Wendell v. Van Renssalaer, 1 Johns. Ch., 350; Watson v. Le Row, 6 Barb., 481; Comm'rs, etc., v. Gellatly, L. R., 3 Ch. Div., 610 (18 Moak, 717); Mare v. Malachy, 1 Myl. & Craig, 559; Walworth, etc., v. Holt, 4 id., 619; Richardson v. Hastings, 7 Beav., 301, 323; Holland v. Baker, 3 Hare, 68; Kirk v. Clark, Finch's Prec., 275; Head v. Ld. Teynham, 1 Cox, 57; Cockburn v. Thompson, 16 Yes., 326, 329; Supervisors v. M. Pt. Railroad Co., 24 Wis. 93, 131-4; West v. Sanders, 1 Marsh., 110. 2. That defendant's rights were not affected by...