Tallman v. Ely

— 256 — By the Oourt, Cole, J. In tlie case of Gillett vs. Eaton, which was decided at the last term of this court, it was held that the grantee of tlie mortgagor, could not maintain an action of ejectment against tlie assignee of the mortgagee who is lawfully in possession of the mortgaged premises after condition broken. We suppose this question to have been substantially passed upon and settled in quite a number of cases found in the books; cases which appeared to have been examined and decided with much care and consideration, and which were supported by the most conclusive and satisfactory reasons, and soundest principles of the common law. Jackson ex. dem. Ireland vs. Hull, 10 J. R., 480; Merritt vs. Bowen, et. al., 7 Cowen, 13? Phyfevs. Riley, 15 Wend., 248; Parsons vs. Wells et. al., 17 Mass., 419; Frische vs. Kramer’s Lessees, 16 Ohio, 125; 1 Powell or. Mort., chap. 7, cases in notes; Adamson Ejt., chap.’s 3 and 4, and cases cited in notes. It would be a waste of time, and wholly unnecessary, to enter upon a general discussion of this doctrine, and it is sufficient to say, that as it would be unreasonable and monstrous to sanction the principle, that the grantee of the mortgagor would take the estate free from the incumbrance, so, as it apears to us, it would be unwise and inequitable to permit the grantee of the mortgagor to obtain the possession as against the mortgagee or his assigns while the mortgage debt remained unpaid. Under such circumstances, if the grantee desired to obtain possession of the premises, he corrld file his bill to redeem, and the court could properly aid him in obtaining possession after the incumbrance was discharged. In this way equity could be fully done between all parties. Aga.n, if the court should put the mortgagor or his grantee in possession of the premises without requiring him first to pay off the mortgage, it might be called upon at the next moment in a proceeding to foreclose and sell the mortgaged premises to turn him out and reinstate the mortgagee or his assignee. But all this unnecessary expense and fruitless litigation can be avoided, and the rights and interests of the parties most completely subserved and protected by adhering strictly to the — 257 — doctrine, that if the morgagee or his assigns, after forfeiture, obtains possession lawfully, the mortgagor, or those claiming under him should not recover the possession without paying the money secured by the mortgage. It is well understood that at common law a mortgage was considered as a conveyance of the legal estate, subject to be defeated by the performance of the condition, and that if the condition was not strictly complied with, the estate became absolute in the mortgagee. 1 Powell on Mort., passim. Hence, after forfeiture of the mortgage and notice to quit, it has frequently been held that the mortgagee could maintain ejectment against the mortgagor, and recover possession of the premises. 17 Mass., 421; 2 J. R., 75; 4 J. R., 186; 17 Id. 300; 18 Id. 487; 13 Vt., 653: But our statute provides that the mortgagee shall not bring his action of ejectment before foreclosing the equity of redemption; Sec., 53, chap. 106; or in other words, he must complete his title before he shall be permitted to recover at law upon the strength of it. Still, if he is lawfully in possession after condition broken lie will not be turned out until bis debt is paid. Applying those principles to the case under review, we think it clearly appears that the circuit court erred in ruling out the record of the proceedings in the foreclosure suit of Fitch, vs. Alden, et al., which was offered in evidence by the defendant, even if the proposition be admitted, (wbicli cannot be maintained,) that this record affirmatively showed that the circuit court never acquired jurisdiction of the person of the grantor of the plaintiff. For manifestly the necessary consequence and result of the decree of foreclosure and sale was to transfer to and vest in the purchaser at the sale all the estate and title in the mortgaged premises, which had been previously vested in the persons who were parties to t'he suit, and bound by the decree. Confessedly among those parties, and concluded by its proceedings, were the mortgagee, Fitch, the mortgagor, James G. Alden, and some others. And can it he denied that if Fitch had been in possession of these premises under his mortgage, after default in paying the mortgage debt, and could — 258 — have successfully resisted an action of ejectment brought by Alden or any one claiming under him, that Tallman, the purchaser of the premises at the sale made by the commissioner under the decree of the circuit court, and in whom all the estate and title of the parties at the commencement of the suit had become fully vested, could not likewise protect himself against the mortgagor or any person claiming through the mortgagor by conveyance subsequent to the mortgage? Whatever estate or title the mortgagee had in the mortgaged premises, became merged in the decree, and passed to the purchaser at the judicial sale. Whatever estate or title the other parties to the suit had, at its commencement, passed by the same act to the same party. Such it would seem must be the necessary and inevitable consequence and 'result of the decree of foreclosure and sale, if any effect whatever is given to them. And these propositions as to the effect of the proceedings, and sale, appear so natural, so reasonable, and so obvious, that it is not easy to perceive how there could be room for difference of opinion about them ; yet we have been referred to the case of Watson vs Spence, 20 Wend. 260, which establishes a contrary doctrine, and upon the strength of which it is understood the circuit court ruled out the record in the case of Fitch vs. Alden et al. We have examined the case of Watson vs. Spence, and are free to admit that unless it can he sustained by the peculiar clauses of the Master’s deed, executed under the decree of foreclosure, we cannot understand upon what principle it rests. The reasoning of the court is ably reviewed, and to our judgment most satisfactorily and conclusively answered in the case of Frische vs. Kramer’s, Lessee. The two cases are strictly analagous, and the Ohio case appears to he more consonant to sound reason and authority, and we feel at liberty to adopt it. We might perh aps feel called upon to enter somewb at at length into the discussion of propositions so adversely decided in the courts of Ohio and New York, and which have been already advanced, had we not conclcuded that this case could be placed upon ground which will relieve it from the weight of the authority even of Watson vs. Spence. We come therefore to — 259 — consider whether the record in tlie case, of Fitch vs. Alden, when, fairlyinterpreted, shows that the circuit court had jurisdiction of the person of John E. Bague, so as to bind him in that suit. To determine this question it will not be necessary to give a full history of the various steps taken in the foreclosure suit. It is sufficient for our purpose to state that Rague was made a party to the suit and-that the bill alleged that he was a resident of the city of Milwaukee. The sheriff returned the supoena not served upon him, and steps were taken to bring him in by publication, as in the case of non-resident defendants. In the progress of the suit the usual order pro confesso was filed April 7, 1851, reciting that an order had been made for the publication, &c., which order had been duly published, and that Rague and other defendants had neglected to enter their appearance in the canse and file and serve their plea, answer or demurrer, and that therefore the bill was taken as confessed as to them. Conceding that up to this time the proceedings had been so irregular that the court had not obtained jurisdiction over Rague, either by publication or otherwise, what do we next find ? At the October term of the circuit court of 1852, a final decree of foreclosure and sale was entered up, which stated that the cause came on to be heard at that term of the court upon the bill taken as confessed as to all the defendants and was argued by counsel, and the court, upon consideration, &c., decreed as follows, &c. Now what is the fair reasonable presumption arising from this record as to the jurisdiction of the court over the parties? Must we not presume that the circuit court acquired jurisdiction of Rague, properly and fully before rendering a decree against him, and that if it had not obtained jurisdiction over him by the proceedings by publication, that Rague, between the 7th of April, 1852, when the order pro confesso was entered, and the 2d of October, 1852, when the final decree was rendered, had made his proper appearance in the cause ? Can it successfully be contended that this record shows affirmatively that Rague did not enter his appearance by himself or altor260 ney in this time ? Certainly this would be a most violent and unauthorized presumption'from this record. The circuit court is a court of- general jurisdiction, and acting upon a subject matter confessedly within its jurisdiction, and can we conclude from the record that the court rendered a decree against parties over whom it had no jurisdiction ? But it appears that the defendant below offered parol evidence in support of this record for the purpose of showing that this natural presumption in regard to the jurisdiction of the circuit court over Bague in the foreclosure suit was strictly and precisety according to the fact. The witnesses, Taylor and Neil, were introduced, who testified that-they-had a general retainer from Bague, and as solicitors, actually appeared for him in the suit about the time the order pro eonfesso was filed, and got a continuance of the cause to the- fall term of the court. Other evidence to the same effect was offered, but the court held that it was incompetent to show an appearance of Bague by parol; that this fact could only be established b.y the record alone, and the testimony was excluded from the consideration of the jury. But we are clearly of the opinion that the testimony offered was competent to show, and did in fact show, that Bague had entered an appearance in the cause before the decree of foreclosure was entered up, aud that consequently he, and all claiming under him, must be bound by the proceedings in that suit. He had bought the property subject to the mortgage, and having been made a party to the foreclosure suit, and having appeared by his solicitors in the case, the decree as to him was final and conclusive. The evidence offered to show his appearance did not tend to vary or contradict the record, but to support it, and is entirely consistent with the natural presumption that would arise from the record. In the case of Brewer vs, Holmes, 1 Met., 288, where a petition had been presented for a review oí a judgment of the court of common pleas, recovered against the petitioner by default, the petitioner alleged that lie was out of the State at the time of the service of the writ, and had no notice of the suit until after judg — 261 — ment; yet tbe court held that evidence was admissable to contradict tbe officer’s return, wliicb stated that be gave tbe party a summons for bis appearance at court; and tbat though the record showed tbat tbe petitioner appeared to tbe original action by attorney, tbat evidence was likewise admissable to establish tbe fact tbat tbe appearance was at tbe request of a third person without tbe petitioner’s knowledge. If such evidence was competent in tbe case just cited, it cannot admit of doubt tbat it was entirely competent for the defendant below to show by parol tbat Rague bad entered an appearance in the foreclosure suit; such evidence in no wise tending to contradict or vary tbe record, but to sustain and support it. It follows from tbe view we have taken of this case tbat there must be a new trial.