The respondent moved for a rehearing; and this motion was: denied, and the following opinion filed, at the June term, 1872.'
Dixon, C. J.The learned counsel for the plaintiff argues' for a rehearing, stating his points, as usual, with great clear-: ness and brevity.
In the action to foreclose the Wallace mortgage, all persons' having any title or interest of record in the mortgaged premises *415subsequent and subject to tbe mortgage, were made parties defendant, and their rights and claims barred and foreclosed. The plaintiff then had such title subsequent and subject to the mortgage, but the same was not of record, and she was not made a party to tbe action. She owned the equity of redemption by deed executed and delivered February 2 9th, 1860, but not recorded until the 8th day of October, 1870. The mortgage was foreclosed, and Hawkins acquired title by sheriff’s deed on the foreclosure sale, in 1861, which deed was immediately recorded. Hawkins conveyed to Brown, Brown to Gilleit, GiUett to Simmons, and Simmons to Charles, the present owner under that line of conveyances, and all these conveyances were recorded before the recording of the deed to the plaintiff. All the persons so purchasing, from Hawkins to Charles inclusive, bought in good faith, for value, and entered into and held possession without notice of the plaintiff’s deed.
The court notes the distinction made by counsel between a grant and a bar or an estoppel, as to the manner in which each operates upon or affects title.- Undoubtedly, as a grant, the sheriff’s deed did not convey to Hawkins the title of the plaintiff, Mrs. Elite, for the plain reason given by counsel, that Mrs. Elite was not a party to the foreclosure action, and so her title could not be directly touched or affected by it. Treated merely as a grant, the position of counsel is incontrovertible, that neither Hawkins nor any of the other defendants, purchasers under him, acquired the equity of redemption in the mortgaged premises by virtue of the sheriff’s deed alone.
But it is not alone as a grant or an actual and valid transfer of the title by the foreclosure sale merely, that the operation of the sheriff’s deed and the rights and title of purchasers under it are to be tested. The doctrine of estoppel against the plaintiff being permitted to assert her title because of her omission to record her deed, and also the principle of bar or avoidance of her title under the registry law, had both intervened and become applicable in favor of subsequent purchasers in good *416faith, and for a valuable consideration, when she afterwards recorded her deed, and when this suit was commenced. Such subsequent purchasers, some or all of them, I think all, had recorded their deeds before that of the plaintiff was recorded. On the question thus presented, the discussion in the opinion on the motion for a rehearing in Hoyt v. Jones, just decided, will be found very pertinent, and perhaps enough upon the subject.
The learned counsel does not controvert the general proposition that the provisions of the registry law are applicable to, or in favor of, titles made through judicial sales and conveyances. This point I understand to be well settled. It is stated in the note, and understood to have been a position agreed to by this court, in Hodson v. Treat, 7 Wis., 263, that “a bona fide purchaser at a foreclosure sale, without notice, has preference to the grantee of the mortgagor’s equity of redemption, whose deed is unrecorded.” The proposition, as stated, is in some respects inaccurate, but it shows that the court looked upon such conveyances as being within the operation of the registry law.
In Jackson v. Chamberlain, 8 Wend., 625, 626, which counsel concedes to be very high authority, Chief Justice Savage says: “ And though our statute does not save the rights of judgment creditors, and the judgment alone is unavailing- as an incum-brance against an unrecorded deed, yet when that judgment is enforced, and a sale is made upon execution, and the sheriff’s deed is first recorded, the purchaser becomes a bona fide purchaser, and in that character is entitled to the property in preference to grantee in the unrecorded deed. Such is my understanding of the law, and such is the current of authority as I read the cases.”
Decisions to the same effect, and some giving even greater rights to judgment creditors, might be cited in numbers; and counsel refers to none to the contrary.
Den v. Richman, 1 Green (N. J.), 43, cited by counsel, holds the same view. The chief justice, delivering the opinion of the court, there says: “ Matthias Richman, the defendant in *417this action, is a purchaser of the premises in question. He who buys at sheriff’s sale, pays the consideration money and procures a deed, is fully and literally entitled to this character and description. He is so called in the act making lands liable to be sold for the payment of debts, and while he is within the terms of the act for the recording of deeds, he is, as muck as any other purchaser for a valuable consideration, within the reason of the safety and protection those acts were designed to afford.” And in the same case Mr. Justice Deake, speaking of the recording act, also says: “ But this is an act for the prevention of frauds, and should be liberally construed. There is no well founded distinction between purchasers at sheriff’s sale and purchasers at private sale. The term purchaser is equally applicable co both, and good policy requires that the former should be protected as well as the latter. And the objection as to seisin is equally strong against a private sale, as against a sale by virtue of an execution ; for if, by reason of the first deed, there was no estate left in the defendant for the purposes of the levy, there could be none to be transferred by the private conveyance.”
And the other authority cited by counsel on this argument, Harlan's Heirs v. Seaton's Heirs, 18 B. Monroe, 812, merely holds that the provisions of the recording acts of Kentucky do not extend to conveyances made by heirs or devisees so as to protect purchasers from them against the title under a prior unrecorded deed made by the intestate or testator in his lifetime. The point was so ruled in that case on the authority of previous decisions in the same court, and upon the doctrine of stare decisis, but with a strong protest against its correctness. The court say: “ If this question was one of first impression, and had not been heretofore decided by this court, we would be strongly inclined to give to the statute a liberal construction, and make it apply as well to the purchasers from the heirs of the grantor of an unrecorded deed, as to purchasers from the grantor himself. The mischief is the same in both cases. The heirs *418at law are as muela the apparent owners of the land as the grantor was in his lifetime, and the protection of innocent purchasers being the evident object of the statute, it would seem to be just and reasonable, and not only consistent with but promotive of the legislative intention, to give it such a construction as would make it operate as a remedy to the whole evil which it was intended to guard against.” The construction which the court thus say ought to be given to the statute, is the same which has been given to precisely similar statutes under like circumstances by the courts of other states. Kennedy v. Northrop, 15 Ill., 148, and McClure v. Tallman, 30 Iowa, 515, and cases cited.
There can be no doubt, we think, of the- correctness of the position thus generally assumed by the authorities, that the statute is to be fairly and liberally construed so as to prevent and obviate the mischiefs and abuses which it was the design of the legislature to remedy. The statute was made to prevent those who once had title to land from making successive sales, and thereby defrauding one or more of the purchasers, which, at common law and without the statute, might be done; and, as a means of accomplishing that object, to protect innocent purchasers, buying and paying their money on the credit of the recorded title, who should themselves testify their appreciation of and proper regard for the rights of others by complying with the condition or requirement of the statute in causing their own deeds to be duly recorded. Such is the object, and such is the justice and policy of the law, for the protection of innocent purchasers who have acquired the ostensible title exhibited and shown by the record. For their protection and safety, prior unrecorded conveyances and titles must yield and must be invalidated. In view of this object and of this policy, and of the manifest justice of the ends to be attained, it would require very urgent considerations indeed to induce us to put a construction upon our registry law, against its letter, which would enable a purchaser to. keep his deed in his own custody and unrecorded *419for years, and suffer the title of record of his grantor and the possession of the land to pass into the hands of one innocent purchaser for value, whose deed should be first recorded, or, as in this case, into and through the hands of several such purchasers in succession, and yet, after all this had been done, then to record his deed, and assert and maintain his paramount title, and uproot and destroy that of one or all of such innocent purchasers.
Rut counsel here, admitting the protection afforded to purchasers at judicial sales in some cases, insists that this is not one of them. He says that the foreclosure judgment in question was in rem, and not in personam against the party then apparently the owner of the land or in whom the record title then was. Rouse, the mortgagor, had conveyed 'to the "Wisconsin Paint Company, whose deed was recorded. The Wisconsin Pjint Company was the owner of record, and was party defendant to the action. The right of personal judgment over was against Rouse, but not against either of the defendants. Counsel argues that there must be judgment in personam against the apparent owner by the record, or the right to such a judgment, in order to produce a title, or effect a sale and purchase which will be protected by the recording act. Counsel says: “ If the title had remained in the mortgagor upon the record, the court would be clearly right; but the mortgagor had sold, and the deed was recorded before the commencement of foreclosure. The holder of the mortgage had no claim against the recorded grantee of the mortgagor, and could recover no affirmative judgment against him.” We cannot assent to these views of counsel, or think that the circumstances alluded to should have the slightest influence upon the title of the purchaser at the foreclosure sale whose deed was first duly recorded.
The decisions of this court referred to and questions put by counsel, respecting the effect of judgments of foreclosure and sale in certain cases or under certain circumstances, are easily distinguished when we recollect that no question under *420tlie registry law was or is involved in them. Independently of tlie registry law and its operation upon titles, and wliicli was not at all involved in the cases, those decisions are clearly not in conflict with the present. Omitting the registry law and any effect which it might possibly have, and we could probably answer the questions of counsel as he would have us do.
The pqjnt that the subsequent purchaser, who would avoid the title under a prior unrecorded deed according to the provisions of the recording act, must himself have purchased and received conveyance from the same grantor who executed the prior unrecorded deed, has been overruled and denied in the recent decision in Fallass v. Pierce, 30 Wis., 443.
By ike Oouri. — Motion for rehearing denied.