Sexton v. Pickett

24 Wis. 346

• Court: Wisconsin Supreme Court
• Decided: June 15, 1869
• Status: Published

Opinion

Paiwe, J.

In this case, the exceptions in the bill as originally settled not having been sufficient to raise the questions sought to -be raised, leave was obtained to withdraw the record for the purpose of applying for an amendment or resettlement before the judge of the circuit court. Such a resettlement was had, and the respondent subsequently moved here to strike out the bill as resettled, for irregularity, on the ground that such resettlement was not had until more than sixty days after written notice of the judgment. The only answer to the motion was, that, inasmuch as the judgment had been appealed from, and the proceedings stayed, the party could not give notice of the entry of the judgment, so as to set the time limited for settling bills of exceptions to running. We were however of the opinion, that the stay of proceedings only prevented the taking of any steps to execute the judgment, and did not prevent the party from giving such notice of its existence as would be necessary to set running the time limited for taking an appeal or settling bills of exceptions. The bill was therefore stricken out. The case was subsequently argued on the record as it stood without the bill.

The facts, as found by the circuit judge, sustain his conclusions of law. The material question presented was substantially the same as that decided by this court in Coyle v. Davis and another (20 Wis. 564), where it was held that a mortgagee, by diminishing the security of a subsequent purchaser of part of the premises, by releasing the mortgagor’s personal liability, discharged the lien of the mortgage so far as the rights of such subsequent purchaser were concerned. Here the plaintiffs were subsequent mortgagees, instead of absolute purchasers ; but this makes no difference in the application of the principle, though it might in some cases merely give the second mortgagee priority over the first, instead of discharging the premises entirely from the lien of the first, as in the case of an absolute purchaser.

But the judgment does not follow the finding. Some of the defendants set up title under a tax deed, and the validity of this title the court expressly declined to pass upon, but rendered judgment for a fore'closure subject to any rights which might exist under that deed, to be determined by future litigation. The judgment, as entered, takes no notice of this provision in the finding, but is absolute, barring the parties from all right, and ordering the purchaser to be let into possession. It must be modified so as to conform to the finding, by inserting an exception saving from its operation the rights of the defendants, or any of them, under the tax deed; and, in order fully to protect them in this respect, it should be expressly stated that the purchaser at the foreclosure sale is not to be let into possession as against any one in possession claiming under the tax deed.

By the Court. — Ordered that the judgment be so modified, with costs, and the cause remanded.