Carberry v. Benson

18 Wis. 489

• Court: Wisconsin Supreme Court
• Decided: June 15, 1864
• Status: Published

Opinion

By the Court,

Cole, J.

In Jones v. Gilman, 14 Wis., 450, it was held that a judgment of foreclosure of -a mortgage executed after chapter 195, Laws of 1859, went into operation, should conform to tbe provisions of that act, and contain a clause giving tbe mortgagor, bis assigns' and subsequent in-cumbrancers, tbe right of redemption within one year from tbe sale. Tbe judgment in tbis case is absolute, or attempts to bar" this right from the date of the sale. The judgment should therefore be modified in this particular, so as to secure this right of redemption.

It is objected that no proof was made of filing notice of lis pendens. This objection is not sustained by the record. A proper notice of the pendency of the action was introduced without objection, accompanied by an affidavit of the attorney of the plaintiff, stating that a copy of such notice was filed in the office of the register of deeds more than twenty days prior to application for j udgment. Now conceding that this was not the best or highest proof of filing notice of Us pendens, but that a,copy of the notice certified by the register should have been produced, still, as it was not objected to on the trial, it was certainly sufficient.

The further objection that the judgment directs the payment of the whole mortgage debt when only a part is due, is not sustained by the record.

The judgment of the circuit court will be modified as before stated.