Manning v. McClurg

By the Court, DixON, C. J. Unlike the rules of the courts of New York, our rules of practice do not prescribe the manner in which the plaintiff, in an action affecting the title to -real property or for the foreclosure of a mortgage, shall show that he has filed a notice of the pendency of the action as required by section 7 of chapter 124 of the Bevis-ed Statutes. In New York it is provided that it shall be by affidavit or the certificate of the clerk of the county in which the mortgaged premises are situated. Buie 46 of Supreme Court; Howard’s Code, 713. The same rule prevailed under the act of May 14th, 1860, to reduce the expenses of [353] foreclosing mortgages in the court of 'chancery (Eule 134 ; 2 Barb. Ch. Pr., 183), and under the judiciary act of 12, 1847. Eules in Equity of 1847, No. 91 In the .absence of a rule of court upon upon ihe subject, it would seem that the proofs should be governed by the rules of law applicable to'written or documentary evidence in general, and that the plaintiff should be required to produce the best evidence of which the nature of his case admits. This would be the original notice, with proof of its having-been filed in the office of the proper register of deeds, that being the office in which by our statute the same is required to be filed ; or a copy of it, certified by the register in the manner prescribed by statute. E. S., chap. 13, sec. 145; id., chap. 137, sec. 71. Under a rule like that in New York, it is not improbable that the affidavit or register’s certificate would constitute a part of the reeórd, so th^t this court, upon appeal, could examine it and determine whether the statute had been complied with; and .if it had not, we might reverse the judgment and remand the csiuse in order that the defect might, if possible, be cured by the taking of new proof, and if not, that further proceedings might be had ac-coi’ding to law. But without a rule, it is manifest that the evidence cannot appear, unless the defendant is present to object and cause his exceptions to be regularly made a part of the record. In the absence of exceptions showing what the proof was, it must be taken to have been regular and sufficient; for we cannot presume that the court would have acted upon it, or rendered .the judgment, unless it was so. Such is the position of this case. The affidavit forms no part of the record, and cannot be noticed. The judgment recites that notice of the pendency of the action was duly filed in the office of the proper register; and from all that appears, it cannot be said that the court- did not reject the affidavit and require further proof of the fact. This recital cannot be impeached except by matter of record showing that it is incorrect. Still if it appeared that the affidavit was the only evidence, it is doubtful -Whether the judgment would be considered irregular. It is but secondary evidence, which, under some circumstances, may be received, and [354] wbicb, if not objected to, will not in general constitute good ground of error. In Boyd vs. Weil, 11 Wis., 58, we decided that a judgment of foreclosure and sale would not be reversed because proof of, filing sucb notice did not appear of. record. In tbat case we may, indeed, seem to have gone somewhat farther, and to have held that the judgment would not be reversed, even though it appeared that there was no proof of the filing of the notice. That however was not a point considered. On the other hand, there seem to be very good reasons for holding that such is not the correct ■ rule of law. It is no doubt true, as thére stated, that the judgment is not void for want of such notice. It is not an objection which goes to the jurisdiction of the court, and hence the judgment cannot for that reason be collaterally impeached as against a bona fide purchaser under it. Potter vs. Rowland, 4 Seld., 448, and Curtis vs. Hitchcock, 10 Paige, 399, are to this point; yet it is distinctly said in each that the omission makes the judgment irregular. If this be so, it would seem to follow that advantage may be taken of it on appeal or in any direct proceeding. The effect of filing the notice is sufficiently obvious from the language of the statute. It is declared that “from the time of the filing only shall the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby.” The object evidently is to cut off all rights and interests in the property which may be acquired subsequently to the notice, so that the title which will be made by the sale shall be perfect against all equities, especially against the entire equity of redemption, which is of the greatest consequence. This being so, it seems clear that the mortgagor and all other parties interested in the funds arising from the sale, are also interested in the question, and that they should have a right to object to the want of such notice. It is important to the mortgagor because he is ultimately liable for the debt, and therefore interested in having the mortgaged premises bring the highest possible price, which can only be when purchasers feel assured that the title which they acquire is perfect and indefeasible. The same is true of other parties who may be entitled to share [355] in the proceeds should thpy exceed the amount of tbe mortgage debt and costs. It seems reasonable therefore, the judgment is not void, that the mortgagor should in the action itself be allowed to object for the want of such notice. The objection that there was no affidavit showing whether any of the defendants were absentees, as required by rule 30, is obviated by facts appearing upon the -face of the record. The object of this requirement is manifest from the rule itself. It is that the plaintiff may be compelled to furnish proofs of the facts and circumstances stated in the complaint, and that he or his agent may be examined on oath as to any payments which have been made. The reason of it is that non-resident defendants, upon whom ho process has ever been served, cannot, like resident defendants who have been personally served, be supposed, by their failure to answer, to have confessed that they have no defense to the- complaint, or that the plaintiff has a good cause of action. This conclusion, which is very fair and just as to the latter, would be very harsh and unjust in the case,of the former, and hence the law does not adopt it, but leaves the plaintiff to establish his case by legal proof of every material fact necessary to his recovery. It appears from an inspection of the record, that the process in the case was personally served on each of the defendants by the sheriff of Eacine county. It is not therefore within the reason or letter of the requirement, but in the language of the rule itself, it was “ otherwise” shown by the plaintiff that none of the defendants were absentees. To the objection that the judgment includes the last in-stalment, which was not due when the action was commenced, but which became due- before the cause was heard, the constant practice of the courts in such cases should be a sufficient answer. But if an authority is needed, Adams vs. Essex, 1 Bibb, 149, is a direct one. It is there observed that a court of equity, having acquired jurisdiction of the cause by reason of the non-payment of the instalment due at the commencement of the suit, has, from the liberality of the principles and rules by which it is governed, the power so to mould and fashion its judgment either as to a part or the [356] w^°^e ^eman(^s)as do complete justice to tbe parties; and that it ought not to turn the parties round at the hearing to begin de novo, but should go on to finish the controversy. The defendants, having violated their contract by j . D . . neglecting to pay the instalment which became due pending the action, ought not to complain because their previous default had furnished the plaintiff with a more ready and expeditious remedy for the breach. The only remaining objection to the judgment is, that it omits to provide that if previous to the sale the defendants or either of them shall bring into court the principal and interest due, with costs, the proceedings under it shall be stayed. The rule in the cases of Howe vs. English, 6 Wis., 262, and Rice vs. Cribb, 12 Wis., 179, is confined to cases where only a part of the mortgage debt is due and the premises cannot be sold in parcels. Roe vs. Nicholson, 13 Wis., 373. Judgment affirmed.