Walker v. Jarvis

*33 By the Court,

We are satisfied that there were no fraudulent representations by Eindlay, in respect to the title to the lands embraced in the mortgage. This whole idea is fully exploded by the testimony. It does certainly appear that all the parties were mistaken in regard to the interest of Eisher in the land. They all supposed he held the absolute title, subject to the contract of sale given to Sheasby. This was their idea of the matter, and they acted accordingly. But it appears that Eisher did not in fact own the property absolutely, it having been conveyed to him by Barlow, to hold as security for the payment of the money which he had loaned to Sheasby. His interest in the property was therefore, only that of a mortgagee ; and when the money was paid, the mortgagor, Sheasby, was entitled to his conveyance. This was the true relation of the parties, and the condition of the title. But of this main fact all parties seemed to be ignorant; for they supposed Eisher owned the property in fee, and had sold it to Sheasby by giving him an ordinary land contract. In this they were all laboring under a mistake. But the testimony does not sustain the assertion that Eindlay knew all about the title and the nature of Eisher’s interest, and made affirmations or false representations in respect to that interest, upon which Jarvis relied in making the purchase. On the contrary, he does not seem to have known any more upon that subject than Jarvis himself. Indeed the whole negotiation of the parties, before the sale; their frequent conversations together and with the attorneys, Wakeley and Tenney, as to what steps it was necessary to take to perfect the title; the suit for the forclosure of the contract; all these .things show incontestibly that one party knew as much as the other about the title, and that no statements or false representations were relied on. If Jarvis was ignorant of the real nature of Eisher’s interest, there is nothing to show that Eindlay was better informed. It is said that Edward Sheasby swears that he told Eindlay, the latter part of 1860 or fore part of 1861, that his father had borrowed the money of *34Fisber to pay Barlow, and that Fisher only held the title as security for the payment of this money. But this was a long time after this mortgage was executed. Jarvis undoubtedly supposed he was getting a good title; but this belief was not founded upon any false representations made in respect to it. He knew that the interest of Sheasby in the property belonged to his father’s estate, of which he was executor ; that there was a question whether Fisher’s interest had become vested in the English or in the American heirs; for all these matters had been fully talked over. He certainly had ample notice to put him upon inquiry as to Fisher’s interest, and might have discovered the defect in the title coming from that source, had he been vigilant, or he mighl have protected himself by covenants of warranty in his deed. He had a full opportunity of examining into the sufficiency of Findlay’s title; he knew its source and origin; the doubv, which existed as to its being perfect ; and now after having exercised his own or such other judgment as he confided in, on the goodness of it, if it turns out defective, he has no remedy, unless fraud was practiced upon him to induce him to make the purchase; and the evidence fails to show that this was done.

But it is insisted that the court erred in refusing to make Farwell a party. We think: otherwise. The interest which Farwell had in the property, if any, was as administrator of she estate of Fisher, and was clearly paramount to the mortgage foreclosed. It appeared to be that of a prior existing mortgage. At all events we cannot see that he was a necessary party to this suit. Whether indeed he can set up his lien as against the appellant, the deed from Barlow to Fisher not having been recorded as a mortgage, it is not necessary to decide. If he has any interest in the property, it is a paramount one, and cannot be settled in this suit.

We likewise think the objection unfounded, that the judgment of foreclosure does not conform to chapter 195 Laws of 1859. That act requires the officer making the sale, to execute *35to the purchaser a certificate setting forth certain matters therein required to be stated. This judgment directs the sheriff to execute and deliver to the purchaser at the sale, a certificate as required by law. This we deem sufficient. It is not like the case of Jones vs. Gilman, 15 Wis., 450, where by the judgment and sale the equity of redemption was barred.

The other objection taken to the judgment is clearly untenable. The mortgagee could not be compelled to take his debt before it fell due. The whole mortgaged premises were required to be sold, and the proceeds applied to the payment of the debt due and unpaid, and the surplus brought into court to await its further orders. This was all that could be done under the circumstances.

The judgment of the Circuit Court must be affirmed.