Gerhardt v. Ellis

Kebwin, J. The only question involved is whether the complaint states a cause of action. This turns mainly upon the construction of secs. 3165, 3169, Stats. (1898), respecting [195] the time within wbieb a mortgagor, bis beirs, personal representatives, or assigns may redeem. A mortgage in Wisconsin bolding a mortgage upon lands in tbis state bas a lien upon tbe real estate mortgaged to secure bis debt. Brinkman v. Jones, 44 Wis. 498. And a foreclosure is not completed until tbe sale on foreclosure is confirmed. Allen v. Elderkin, 62 Wis. 627, 22 N. W. 842; Welp v. Gunther, 48 Wis. 543, 4 N. W. 647. It appears from tbe complaint that at tbe time tbe action was commenced tbe sale upon foreclosure bad not been confirmed, and tbe question arises whether it was then too late to redeem. There can be no doubt but that tbe right to redeem persists at least until confirmation of sale, unless that right is cut off by statute. Sec. 3165, Stats. (1898), provides, in effect, that tbe mortgagor, bis beirs, personal representatives, or assigns may at any time before tbe sale of tbe premises redeem by paying in tbe manner specified in tbis section tbe amount of tbe judgment, interest, and costs, and costs subsequent to tbe judgment, and any sums paid by tbe plaintiff subsequent to tbe judgment for taxes. It will be seen that tbis section does not limit redemption, but merely provides for redemption and tbe manner of payment at any time before sale. Sec. 3169, Stats. (1898), limits tbe time of redemption, and provides that upon sale being made tbe sheriff or referee making tbe same, on compliance with its terms, shall execute and deliver to tbe purchaser a deed of tbe premises sold, which deed, “upon tbe confirmation of such sale, shall vest in tbe purchaser all tbe right, title and interest of tbe mortgagor, bis beirs, personal representatives and assigns in and to tbe premises sold and shall be a bar to all claim,' right or equity of redemption therein, of and against tbe parties to such action, their beirs and personal representatives, and also against all persons claiming under them subsequent to tbe filing of tbe notice of tbe pendency of tbe action in which such judgment was rendered; and the purchaser, bis beirs [196] and assigns shall he let into the possession of the premises so sold on production of such deed or duly certified -copy thereof.” It is not necessary to consider whether the “sale” mentioned in sec. 3165, Stats. (1898), has reference to the striking off of the property to the purchaser, or the perfected sale on confirmation. It is clear that the title does not pass until confirmation so as to vest the purchaser with the right of possession. And it is equally clear that the right of redemption is not barred until confirmation of the sale. Sec. 3169, Stats. (1898) ; Allen v. Elderkin, 62 Wis. 627; 22 N. W. 842. So the plaintiff having commenced his action to redeem before confirmation and within one year after becoming of age, his action was seasonably brought. Some point is made by counsel for respondent on the sufficiency of the complaint because it does not allege that plaintiff offers to pay the judgment or costs or taxes and that no tender of any specific amount of money is alleged. But the complaint does allege that the defendant Ellis has had possession of the premises for many years and has had the rents and profits thereof and converted to his own use timber to the value of upwards of $600, and continued in possession, taking the rents and profits, until April, 1904-, when he deeded the premises to one of the other defendants. The complaint further alleges that plaintiff does not know the value of the rents and profits received by defendants, but avers upon information and belief that they exceed the amount of the mortgage indebtedness, and that he demanded an accounting which has been refused, and defendants have refused to allow plaintiff to redeem. We are convinced that the complaint states a good cause of action and that the court below erred in sustaining the objection to evidence under it and in dismissing the complaint. By the Court. — The judgment of the court below is reversed, and the action remanded for further proceedings according to law.