Ames v. Storer

PiNNEY, J. 1. Whether;, as contended by the defendant Storer, it was agreed at the time of the foreclosure sale, and in consideration thereof, that the purchaser, Finch, assumed the payment of the four tax certificates, with interest, costs, and charges, which Storer held against the premises, and to x’eimburse him therefor, was a controverted question of fact, upon which the evidence is so conflicting that it is impossible to say that the finding of the court adverse to the contention of the defendant is against the clear preponderance of the evidence. We cannot, therefore, interfere to reverse this finding, and a discussion of the evidence upon which it is founded would lead to no profitable result. The parties neglected a salutary precaution in such cases, by failing to fully complete the business in hand, or to commit their agreement to writing; and after the foreclosure sale had been completed by the execution and delivery of the necessary [379] deed and the payment of $5,551.46, the amount of the bid, the present controversy about the amount of the tax certificates occurred, which gave rise to the present action. 2. -The general rule is stated to' be: “A purchaser at a mortgage foreclosure sale acquires all the title and interest of both the mortgagor and mortgagee in and to the property. The court undertakes to dispose of the interests of the parties to the suit in the land, and the purchaser acquires those interests, whatever they may be. And it has been said that a sheriff’s sale of real estate under a judgment recovered by scire facias upon the mortgage passes to the purchaser the title to the mortgaged premises, dischai-ged of all equities,— even of those of which the mortgagee had no notice or knowledge.” Wiltsie, Mortgage Foreclosure, § 577. In Tallman v. Ely, 6 Wis. 244, the court, speaking on the subject, said: “ 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.” Whatever doubt may have existed upon this subject has been put at rest by the statute (R. S. 1878, sec. 3169), which provides that, upon any foreclosure sale being made, “ the ■sheriff or referee making the same, on compliance with its terms, shall make, execute and deliver to the purchaser a deed of the premises sold, setting forth each parcel of land sold to him, and the sum paid therefor, which deed, upon the confirmation of such sale, shall vest in the purchaser all the right, title and interest of the mortgagor, his heirs, personal representatives, and assigns, in and to the premises sold, and shall be a bar to all claim, right, or equity of redemption therein, of and against the parties to such action, [380] their heirs, and personal representatives, and also against all persons claiming under them subsequent to the filing of the notice of the pendency of the action in which such judgment was rendered.” The referee’s deed to Finch, the purchaser at the foreclosure sale, upon the confirmation of such sale, passed to him whatever right, title, or interest the defendant Storer had in and to the premises sold, whether under the tax certificates in question, or either of them, or otherwise. For this- reason, and in view as well of the finding of the' circuit court already noticed, the defense of Storer utterly fails; and it is not material to consider or determine whether the purchase by Storer of the tax certificates in question operated as a redemption of the lots from such tax sales, or-as a payment of the taxes thereon. In any view, therefore, that may be taken of the case, the judgment of the superior-court is correct. By the Court.— The judgment of the superior court is affirmed.