Smith v. Zimmerman

55 N.W. 956, 85 Wis. 542, 1893 Wisc. LEXIS 307

• Court: Wisconsin Supreme Court
• Decided: June 21, 1893
• Status: Published

Opinion

PiNNey, J.

1. The appellant contends that because the plaintiff was not in possession of the premises when she brought her action she cannot maintain it to remove a cloud upon the title. The action is not founded on the statute (S. & B. Ann. Stats, sec. 3186), but is an application to the inherent jurisdiction which courts of equity possess to prevent or remove clouds on title to land, and which they have exercised from a very early period. Evidence aliunde the record of the judgment becomes necessary to show that the premises in question, at the time of the recovery and docketing of the judgment by the defendant Zimmerman, were the homestead of the Sanborns, and that while it is an apparent lien it is in reality no lien or charge thereon. The Sanborns had a right thereafter to sell and convey their homestead, and the purchaser, the plaintiff, would take a valid title, free from the lien of the judgment. S. & B. Ann. Stats, sec. 2983. The plaintiff, as such purchaser, has a right to maintain this action to procure an adjudication declaring that the judgment in question, is not a lien or charge on the premises she had purchased, and to prevent a sale thereof by any process depending for its validity solely upon the judgment, although she is not in actual possession; otherwise, she might be without adequate remedy. The point raised by the appellant has been so frequently decided that further- discussion is not necessary. Pier v. Fond du Lac, 38 Wis. 479; Goodell v. Blumer, 41 Wis. 436, 442, and cases cited.

2. The allegations of the complaint are sufficient to show that the plaintiff is entitled to the relief she seeks. The only objection made is that the complaint does not show that the premises were the homestead of the Sanborns at the time of the issuing of the execution and its levy. This was not necessary. The execution and sale under it are but the means of carrying into effect the lien given by the statute. The statute makes judgments a lien on lands of the debtor, and no levy or seizure by the sheriff became or was necessary, and in practice there is no such thing as a levy of execution upon real estate. “ All that is necessary to make a regular sale upon execution issued upon a judgment is to publish the notice of sale as required by the statute, and make the sale at the time mentioned in the published notice.” Shafer v. Phoenix Ins. Co. 53 Wis. 361; Hammel v. Queen’s Ins. Co. 54 Wis. 72. The seizure is already made when the execution comes,to the sheriff’s hands. Wood v. Colvin, 5 Hill, 230, 231. No entry of a levy upon the execution is necessary to perfect the sale. Colt v. Phœnix F. Ins. Co. 54 N. Y. 595. The exemption which existed when the judgment was docketed could not be impaired by a sale of the premises, but would extend to the proceeds derived from such sale, while held by the Sanborns with the intention to procure another homestead therewith, for a period not exceeding two years. By the agreement of sale of October 4,1890, from the Sanborns to Durkee while the premises were clearly exempt, he became the equitable owner thereof, subject to the payment of the unpaid purchase money; the Sanborns holding the legal title as a security merely for its payment. The plaintiff has succeeded to the rights of the Sanborns. No sale of the premises on execution founded on this judgment can affect the rights of either the plaintiff or Durkee in the least degree.

The circuit court properly overruled the defendant’s demurrer.

By the 'Court.— The order of the circuit court is affirmed.