I. The plaintiffs make their title to the land in controversy through the sale thereof by virtue of the execution, and unless that be a valid execution, the sale and conveyance under and by virtue of it are necessarily void, and the plaintiffs have no title to the land. It is claimed on behalf of the defendants that such execution is irregular, defective and void, because: 1. It does not state correctly the day on which the judgment was docketed; 2. It does not command the officer to satisfy the judgment out of the personal property of the debtor, before resorting to his real estate; 3. It does not in terms direct a sale of the real estate attached, but only that it be levied upon; and 4. It does not direct a sale of the interest in the land which the judgment debtor had at the time it was attached, but only directs generally that the judgment be satisfied out of the debtor’s real property belonging to him on the day the same was docketed.
The general and ordinary requisites of an execution are prescribed by statute. R. S., ch. 134, sec. 8. It must state, among *237other things, “ the time of docketing ” in the county to which it is issued. Subdivision 1 of that section provides as follows: “ If it be against the property of the judgment debtor, it shall require the officer to satisfy the judgment out of the personal property of such debtor, and, if sufficient personal property can not be found, out of the real property belonging to him on the day when the judgment was docketed in the county, or at any time thereafter.” (Tay. Stats., 1546, § 8.) But there are other statutes which prescribe the practice in cases where, as in this case, the property of the judgment debtor has been attached before judgment. Sec. 54, ch. 130, E. S., provides that in case judgment be entered for the plaintiff in the attachment suit, the sheriff shall satisfy the same out of the property attached by him, 1. By paying over to the plaintiff proceeds of sales of perishable property, and of real estate received from any garnishee, and proceeds of debts or credits collected by the sheriff; and 2. By selling so much of the attached property, real or personal, on the execution issued on such judgment, as shall be sufficient to satisfy the same. Sec. 59 of the same chapter is as follows : “ When real estate has been attached in pursuance of the provisions of this chapter, and judgment shall be rendered for the plaintiff, the execution may, among other things, direct a sale of all the interest which the defendant had in such real estate at the time it was so attached.” (Tay. Stats., 1481, 1483, §§ 57, 62.)
Construing these statutes together (and certainly they are in pari materia and should be so construed), we are of the opinion that it is optional with the judgment creditor, in an action wherein the property of his debtor has been attached, to issue a special or limited execution, merely directing that the attached property be sold, or to issue an execution in the ordinary form, with the addition thereto of a special direction for the sale of the attached property. In either case the recitals contained in the execution will be the same, and in either case the property attached will be the primary fund for the payment of the judg-*238menfc. The only 'difference in the two forms of execution is, that if it be special, none but the attached property can be sold under it; but if the other form be adopted, the execution may be levied upon property" not attached, if that attached be insufficient to pay the judgment.
In the present case, the theory upon which tbe execution was framed is not very apparent, and perhaps it is not very material to know what that theory was. We are to look at the substance rather than the form, and the true inquiry seems to be, What is the scope and extent of the mandate contained in the execution ? When the writ of attachment was executed, and also when the execution was served, the judgment debtor had no other real estate in Milwaukee county liable to be seized on either process. This appears by the returns of the sheriff to those writs.. Hence, notwithstanding the general language of the mandate, in view of the facts, it is nothing more, in substance and effect, than a direction to the sheriff to levy upon and sell all of the interest which the judgment debtor had, on the 28th of November, 1859, or any time thereafter, in the real estate therein described, and which was seized by virtue of the writ of attachment.
The mistake in the execution of one day in the date of docketing the judgment, cannot possibly prejudice the judgment debtor. It is a trifling and immaterial error, which, if necessary, may be cured by amendment. The object of the recital is to show the time when the judgment became a lien upon real estate, and the lien in this case was fixed by the attachment long before November 28, 1859.
The execution might properly have directed a sale of the interest which the judgment debtor had in the land in controversy when it was attached, to wit, on the 19th day of February, 1859, or any time afterwards. But we do not think that the execution is void because it directs a sale of the interest which he had therein on the day that the judgment was rendered, or any time after that day. -If this- is an error, it is one *239■which is, or may be, against the judgment creditors, and cannot possibly work any injury to the debtor. It is equivalent to a remitter, by such creditors, of their lieu on the land attached, from February 19th to November 28th; and it is not perceived wherein it differs in principle from a case where a plaintiff voluntarily remits a part of his judgment and issues execution for the balance thereof. It will not be claimed that an execution issued on a valid judgment for $1,000, but which only directs the sheriff to collect $500, is not a valid execution for the latter sum.
The only objections taken to the validity of the plaintiffs! title relate to the alleged defects in the form of the execution, and it is believed that the views above expressed dispose of all those objections.
The cases in Connecticut, cited by the learned counsel for the defendants to show the invalidity of the execution, do not relate to the form of the writ. They simply hold that where certain statutory provisions concerning the appraisal of real estate seized on execution have not been complied with, the writ is invalid, and no title can be established under it. Metcalf v. Gillet, 5 Conn., 400; Mitchell v. Kirkland, 7 id., 229. The inapplicability of these cases to the present one is apparent.
After most careful consideration, our conclusions upon this branch of the case are, that the execution under and through which the plaintiffs claim title, is a valid one, and that they have a good title to the land in controversy, unless the same is defeated by the tax deed to Pixley and the subsequent conveyances under it.
II. We now come to consider the effect of the tax deed to Pixley, and the subsequent conveyances, upon the title of. the plaintiffs. The validity of this tax deed is unquestioned, and it must be conceded that it conveyed to Pixley an absolute estate in fee simple in the land in controversy. R. S. 1849, ch. 15, sec. 109. It is claimed that the defendant Every Agnes had no interest in the land which could be seized on attach*240ment or sold bn execution. We think otherwise. Possession is one degree of title, although the lowest. It is such an interest in land that one who has only the bare possession may maintain ejectment against a mere wrong-doer who has intruded into the possession, notwithstanding the statute (R. S., ch. 141, sec. 2) provides that no person can recover in such an action unless he have a valid subsisting interest in the premises claimed. Bates v. Campbell, 25 Wis., 613. The possession of the judgment debtor which he had when the judgment was obtained and at the time of the execution sale, was a “ valid and subsisting interest ” in the land, an interest which might lawfully be sold on execution. Bunker v. Rand, 19 Wis., 253.
III. But it is further claimed that by reason of the -alleged attornment by the defendant Every Agnes to Hanrahan, the possession of the former became adverse to the purchasers at the execution sale, and subservient to the tax title, and that therefore two distinct statutes of limitation have run against the title claimed by the plaintiffs: the limitation of three years prescribed by the Laws of 1861, ch. 138, sec. 5 (Tay. Stats., 441, § 173), and the ten years limitation prescribed by the R. S., ch. 138, sec. 6 (Tay. Stats., 1622, § 6).
This proposition requires but little discussion. The attornment referred to was effected by the acceptance by Agnes of a lease from Hanrahan of the premises in question. That lease, by its terms, did not commence to run until May 1, 1861, and until that time the premises were held adversely to the tax deed. The latter deed was recorded April 12, 1858. The premises were therefore held adversely to the tax title more than three years after the same was recorded. There being no pretense that the grantee in the tax deed, or his assigns, is or are within the exceptions of the statute, such adverse possession absolutely defeats the title conveyed by the tax deed. Laws of 1859, ch. 22, sec. 32 (Tay. Stats., 440, § 172). The statute has run against the tax deed, and in favor of the plaintiffs, who succeed to the interest of the oi’iginal owner.
*241But were it true that such attornment was made before three years from the recording of the tax deed bad elapsed, it would still be inoperative, and was, whenever made, inoperative to change the character of the occupancy, for the reason that the purchasers on the execution sale had no notice whatever of such attempted attornment.
From and after the execution sale, Every Agnes held possession of the premises under the purchasers thereof at such sale, and not adversely to them. This is well settled by the authorities cited on behalf of the plaintiffs. It is also well settled that “ where one enters in subserviency to the title of the real owner, there must be a clear, positive and continued disclaimer and disavowal of the title under which he entered, and an assertion of an adverse right brought home to the owner, in order to lay a foundation for the operation of the statute of limitations.” 3 Washburn on Real Property, 127 (ch. 2, § 7, subd. 23). Here we have no such disclaimer or assertion of an adverse right brought home to the plaintiffs, or the purchasers at the execution sale. There is no pretense that John B. King ever knew of this attornment to Hanrahan, or that either of the plaintiffs knew of it until after this action was commenced. Hence, no foundation has been laid for the operation of either of the above mentioned statutes of limitation, and they are not available to the defendants.
IY. The views already expressed are decisive of the case; but it is deemed proper to say that we have considered the question, and, were it necessary to decide it, we should have no difficulty in finding from the' evidence that the defendant Every Agnes purchased the tax title of Pixley, paid for it, had the same conveyed to Hanrahan, and by the latter to Mrs. Agnes, for his own use and benefit, and that these proceedings are not in the way of a recovery in this action by the plaintiffs.
We refrain from determining whether a wife (especially one who has no separate estate) can take a tax deed of her husband’s land, and hold such land adversely to the husband. If *242she may lawfully do so, .some singular complications growing out of such transactions may hereafter arise.
V. The plaintiffs are entitled to judgment for the recovery of the land, but can only recover mesne profits from the time of the execution of the sheriff’s deed, that is, from February 26, 1872.
By the Court. — The judgment of the county court is reversed, and the cause remanded with directions to that court to render judgment for the plaintiffs in accordance with this opinion.
On a motion for a rehearing, the respondents’ counsel con • tended, 1. That the defect in the execution was one of substance, and not merely one of form; that it was the intention of the legislature, indicated by sec. 8, ch. 134, R. S'., that the real estate of judgment debtors should not be sold on execution, until their personal property liable to execution should first be exhausted; that there was no intention to depart from this rule by the enactment (in 1856) of subd. 2, sec. 54, ch. 130, R. S.; but that this subdivision assumes that the usual execution upon the judgment is to be issued. Compare that section with sec. 63, ch. 112, R. S. 1849. A return that the judgment debtor had no other property out of which the execution could be made, indorsed upon a writ which did not authorize the officer to look for personal property, or even to take money in payment of the debt, cannot affect the question as to the validity of the writ. 2. That the possession of JSoery ■Agnes, at the time of the attachment, did not constitute such .an interest in the land as would pass to the purchaser at the execution sale. Possession is prima-facie evidence of title, and it may sustain a judgment in ejectment when the defendant shows no better evidence of title. At the date of the attachment and of the judgment, Pixley was the absolute owner of the property, and had the right of possession. He could have maintained ejectment against Agnes. The possession of Agnes therefore was unlawful. Can such unlawful possession be the *243subject of sale on execution? Can the purchaser of it maintain ejectment, even as against a trespasser? If either of the defendants has acquired the title which Pixley had in fee simple, then the doctrine laid down in the opinion would go to this extent: that the purchaser of the naked possession (and, we say, unlawful possession) may maintain ejectment against one who is the owner of the fee, and who has also the right of possession. We hardly think the case of Bunker v. Rand, 19 Wis., 253, goes to that extent. 3. That as to the transactions between Pixley, Hanrahan and the defendants, unless plaintiffs stood in such relation to Every Agnes that such transactions were a fraud upon them, or unless Every Agnes was under obligation to buy in the title of Pixley for their benefit, then the title passed from Pixley to Hanrahan, as between Every Agnes and the plaintiffs. Counsel argued further, (1.) That plaintiffs were not in a position to question those transactions. They had no interest in the property when the tax accrued, nor when the tax deed was executed. They acquired by the execution sale no greater interest in the property than the judgment debtor had. But the absolute title had previously passed from him under the tax deed; and he had not even the right of redemption left. The relation between him and the plaintiffs was exactly the same as if he had conveyed the land to Pixley, by deed duly executed and recorded prior to the attachment. If such a conveyance had been made, was the relation of the parties such that the plaintiffs could question the honesty of a subsequent purchase from Pixley, with the money of Every Agnes, and in the name of Hanrahan ? If, under this supposition, Agnes had purchased it back in his own name, could the plaintiffs find fault with the transaction ? (2.) That Every Agnes, after the absolute title in fee simple had passed to Pixley and after plaintiffs had sold whatever interest (if any) Agnes had in the property, was not under any obligation to buy in the title of Pixley for the benefit of the plaintiffs. Could not Agnes, as against the plaintiffs, therefore, have taken the *244deed from Pixley in his own name? “After a tax title has matured in the hands of a stranger, it is said that one tenant in common may purchase and hold adversely to his cotenant.” Blackwell on T. T., 472; Kirkpatrick v. Mathiot, 4 W. & S., 251. Counsel further contended that there was no evidence ■upon which the findings of the court below as to these transactions should be disturbed, under the established practice of this court; but if otherwise, that then the evidence should be submitted to the jury upon a new trial.
The motion for a rehearing was denied.
Lyon, J.We think that this case was correctly decided. After a careful consideration of the argument in support of the motion for a rehearing, our opinions are unchanged upon the following propositions: 1. That the execution, although informal in some respects, was valid, and that the plaintiffs have good title to the premises in controversy, unless the same is defeated by the tax deed to Pixley. 2. That the tax deed is barred by the statute of limitations, because the possession of Agnes was adverse to the holder of the tax title, and subservient to the purchasers at the sale by virtue of the execution, and so continued for more than three years after the tax deed was recorded ; and 3d. That at the time of such sale Agnes had an interest in the land, which was the subject of sale on execution against him.
In addition to what is said in the former opinion upon the last proposition, it may be observed, that although the tax deed vested in Pixley an absolute estate in the land in fee simple, yet such estate was liable to be entirely defeated, and the whole title revested in Agnes, by the failure of Pixley to assert his title within three years after the tax deed was recorded. The interest of Agnes in the land was, therefore, something more than the mere naked possession thereof. It was an adverse possession, which, within a very limited time, might ripen into a perfect title thereto. That such an interest may be the subject of seizure and sale'upon execution, we can not doubt.
*245There is no real conflict in the testimony which establishes the existence of the facts upon which the foregoing propose tions are based ; and if the propositions are correct (of which we entertain no reasonable doubt), they are conclusive of the •case, and determine it against the defendants.
It is suggested in the argument on this motion, that the findings of fact by the court are equally as conclusive as the verdict of a jury, and cannot be disturbed on appeal where there is any testimony to sustain them. Such is not the law of this state. In Snyder v. Wright, 13 Wis., 689, it was held that under the provisions of ch. 264, Laws of 1860, this court is required to review questions of fact as well as of law, when the trial has been had before the court below without a jury, and proper exceptions have been taken to the findings of fact. And the rule there asserted has been constantly adhered to by this court, in all such cases, when the bill of exceptions (as it does in this case) purports to contain all of the testimony introduced on the trial. The rule is the same in legal and equitable actions. Sanford v. McCreedy, 28 Wis., 103 and cases cited. When the judgment in an action tried by the court without a jury is reversed, this court, in its discretion, directs the proper judgment to be entered or orders a retrial of the action, as justice may require. In this action we have all of the controlling facts before us, and there seems to be no good reason to believe that they would appear differently on another trial. Neither have the defendants been deprived of any testimony by adverse rulings of the court, which ought to have been received. In short, no good reason is perceived why there should be a retrial of the case.
For the sake of strict accuracy, and not because it is material to the decision of this motion, it should be stated that the former opinion attributes to the. learned counsel for the defendants more objections to the validity of the execution than were made by them. The only point against the validity of that writ urged by them on the former argument, was, that it did *246not command the officer to satisfy the judgment out of the personal property of the debtor before resorting to his real estate.
By the Court. — Motion denied.