One of the principal questions discussed in, this case, namely, whether the defendant was in a position to take advantage of the irregularity in the execution sale, has, in effect, already been decided in the negative in Raymond v. Pauli, 21 Wis. 531. The counsel for the defendant struggled somewhat with the doctrine of that case, and further attempted to show that there were some facts involved in the present one which really rendered that decision inapplicable. But we are unable to distinguish the cases in principle. It must be admitted that the statutory right of redemption from the execution sale was gone at the time of the foreclosure sale under the Holborn mortgage. The mortgagee in that mortgage had made no effort to redeem from the judgment while the right to redeem existed. She, as well as the judgment debtors, must therefore be presumed to have acquiesced in the sale, even if she could have in any way taken advantage of the irregularity in not selling the real estate levied on in tracts and parcels separately — an objection it is doubtful about her being able to make to the sale. The purchaser at the foreclosure sale must be deemed in law to have had notice that the title of the purchaser at the execution sale had become absolute. It is said that he had no actual knowledge of the existence of the Ehodes and Dewey judgment, or of the sale under it. But he must be held to have had constructive notice, at least. The judgment and certificate of sale were matters of record, and had he taken the trouble to examine in respect to the title, hé would have learned all about them. This ho did not do. Now, upon what prin *62ciple can the purchaser at the foreclosure sale ask a court of t equity to set aside the sale on the execution ? We have already-seen that the judgment debtors could not, after the period of redemption had expired, set aside the sale because the land was not sold in separate parcels. Nor had the mortgagee of the Holborn mortgage any such right. What superior right or equity can the purchaser at the foreclosure sale have to disturb that sale ? It is said that he has become interested in the property. True, but can he claim any greater rights therein than the original mortgagors and mortgagee of the Holborn mortgage, so far as the irregularities in the execution sale are concerned? We think not. And if neither of those parties had the right to redeem from the judgment, nor to set the sale aside, it is difficult to understand upon what ground the defendant can do what they could not.
The title of the purchaser at the execution sale, then, having become perfect, what is the true relation of the parties? We are disposed to hold that such purchaser took his title, and still holds it, subject to the prior mortgage interest. Of course the Moss mortgage was' paramount and superior to the Rhodes and Dewey judgment. This is not denied. But it is claimed by. the counsel for the plaintiff, that, on the foreclosure of the Holborn mortgage, the Moss mortgage was simply paid and discharged. Was this so ? In the foreclosure suit brought by ' Lucy J. Holborn, Moss, the prior mortgagee, was made a party defendant. He came in and answered, setting up his rights. Judgment was rendered, that the property covered by the mortgage be sold, and that the Moss mortgage be first paid out of the proceeds of the sale. This was done, and the proceeds so applied.
The Moss mortgage was paid by the sale of the property, and the purchaser at the foreclosure sale took title as well by virtue of the foreclosure of the first as of the second mortgage. Or, if it is not technically correct to say that the Moss mortgage . *63. was foreclosed, at all events the interest in that mortgage was transferred to the purchaser by that proceeding, and a court of equity will keep it alive,if necessary to protect his rights. What equity is there in saying that the plaintiff takes his parcel of the mortgaged premises discharged of that lien ? And why should not the purchaser at the foreclosure have the benefit of a sale which was made to satisfy one mortgage as well as the other ? It is true, the prior mortgagee was' not an indispensable (though a proper) party to a suit to foreclose the second mortgage. But being made a party, and coming in and demanding payment of his debt, the sale of the land is made to satisfy both liens. The plaintiff’s rights, however, were not cut off by .the sale, because he was not a party to the suit. And as his judgment lien was subsequent to the Moss mortgage, he ought not to claim any better position since the foreclosure sale. He can redeem by paying his equitable proportion of the prior incumbrance. But whether he can do that in this suit, or whether this action for partition should be stayed until a separate suit is brought for that purpose, is a question of practice that we are not clear enough upon to express an opinion. At all events, the plaintiff was not entitled to the relief demanded in the complaint, because the defendant’s rights, to the extent of the Moss mortgage, were paramount. But the circuit court set aside the sale made upon the execution issued on the Ehodes and Dewey judgment, and adjudged the sheriff’s deed to be ineffectual to vest the title in the plaintiff. It follows from the views already expressed, that this was error.
By the Court. — The judgment of the circuit court is reversed,' and the cause remanded for further proceedings. '