This is an appeal from a judgment of nonsuit, in an action of replevin to recover possession of certain crops. The plaintiff was the purchaser of the land upon which the crops were growing, at a foreclosure sale made on the 19th day of June, 1878, under a judgment rendered on the 18th of June, 1877. The premises at the time of sale were, and had been for more than two years previous, in the possession of the defendant, under an unrecorded lease given by the mortgagor, subsequent to the mortgage. The defendant was not made a party to the foreclosure suit. On the trial, the plaintiff, to establish his title to and ownership of the crops, offered in evidence the deed executed by the sheriff' on the foreclosure sale, which was objected to on the ground that it appeared on the face of the instrument that the judgment was rendered on the 18th day of June, 1877, and that the sale took place on the 19th day of June, 1878, and that therefore the sale and deed were void. The deed was excluded, and the first error assigned is this ruling rejecting the deed.
In support of the ruling of the court below, the counsel for the defendant contend that the deed was void, because, under ch. 143, Laws of 1877, no proceedings on the judgment, as by advertising the mortgaged premises for sale, could legally take place until after the expiration of a year from the date of the judgment. In the case of The N. W. M. L. Ins. Co. v. Neeves, ante, p. 147, it was said that a proper construction of the law of 1877 did not justify any steps to be taken for a sale of the mortgaged premises before the expiration of one year from the date of the judgment; but in that case we did not have occasion to consider the effect of a sheriff’s deed executed on a sale prematurely made. That is the question involved here.
The counsel for the plaintiff insists that even upon the con-*307strnction of the law of 1877 as above indicated, still the deed should have been admitted in evidence, and that it was error to exclude it. He claims the rule of- law to be well settled, that the purchaser of mortgaged premises is entitled to the crops growing upon the land at the time of sale, and that the effect of the deed was to show that the plaintiff was entitled to recover the crops in this action as against the defendant. Prima, facie, he says, the deed was valid, and could not be collaterally impeached. Resides, by the third section of the act, the sale might be made within the year on the consent of the parties to the action, and, in the absence of all proof to the contrary, the presumption from the deed is, that such consent was given, and the sale legal.
In note (H), 1 Powell on Mortgages, 161, Mr. Coventry remarks, that, “ when it is said that, as between the mortgagee and mortgagor, the mortgagee is entitled to the emblements, the meaning is, that when the mortgagor has personally occupied the premises, and the actual possession is afterwards delivered to the mortgagee by the sheriff or otherwise, the growing crops which are found upon the premises become part of the security, and may be applied by the mortgagee to his own use; but the principle does not apply to the case where the growing crops have been carried off by the mortgagor before the mortgagee obtains possession, and between the time of his demand and recovery of possession.” And this same rule of law has been substantially laid down or recognized by numerous authorities in this country. Some of the eases bearing upon the point are cited in the brief of the counsel for the plaintiff. But we do not find that any of these authorities go to the extent of holding that a purchaser at a foreclosure sale can, before he obtains possession of the premises, or even before the sale is confirmed by the court, maintain an action of replevin for the crops growing upon the premises. In Lane v. King, 8 Wend., 584; Shepard v. Philbrick, 2 Denio, 174; Simers v. Saltus, 3 id., 214; Gillett v. *308Balcom, 6 Barb., 370; Howell v. Schenck, 4 Zab., 89, and Jones v. Thomas, 8 Blackf., 428, tbe purchaser at the foreclosure sale had obtained possession of the premises, and it was held that he, or those claiming under him, wei’e entitled to the growing crops. In the case before us, the purchaser, who was the mortgagee, has not acquired possession under the sale, nor did he offer evidence, or propose to show, in connection with the sheriff’s deed, that the sale had ever been confirmed by the court. Under these circumstances, we are unable to perceive how the rejection of the deed could have injured the plaintiff. For if the deed had been admitted in evidence, and every presumption contended for in favor of its validity had been made, still the plaintiff would not have made out a case without proving other material facts which it is not claimed existed. Consequently the error in excluding the deed, if it were one, must, in the position of the case, be disregarded. Gready v. Ready, 40 Wis., 478. For we are clearly of the opinion that this action cannot be maintained without showing a confirmation of the sale by the court. Whether, indeed, it would be necessaiy for the plaintiff to go further, and actually acquire possession of the premises under the sale,before he could maintain replevin for the crops growing on the ground, is a question not now before us, and not considered. But surely it was essential to show that the sale had been confirmed; for until such confirmation the sale remained under the power of the court, and was liable to be set aside on .proper cause. The title to the crops, with the right of possession, could not therefore be said to be absolutely and exclusively vested in the plaintiff before the sale had been reported and confirmed. This is the most favorable view of the case for the plaintiff that can be taken upon the facts. It is true, the record shows that demands have beenmade by the plaintiff for the possession of the premises, which demands have been refused. But this does not aid the case. If the sale is regular, it will doubtless be confirmed by *309the court, and the purchaser has an ample remedy in the law to acquire possession and vindicate his rights in the crops.
We have assumed, thus far, that the tenant was bound by the judgment of foreclosure because his lease was not recorded at the time of filing the notice of Us gendens. This position is controverted by the counsel for the defendant, because he was in the open possession of the property when the foreclosure action was commenced. We shall not examine the question, inasmuch as the action must fail because the sale has never been confirmed. That question is decisive of the case.
By the Court. — The judgment of the circuit court is affirmed.
On a motion for a rehearing, appellant’s counsel argued substantially as follows: 1. When this action was commenced, in August, 1878, no confirmation of a foreclosure sale was necessary to vest the title and right of possession in the purchaser. (1) C. O. Rule 31 of 1857 declares that, “ unless otherwise specially ordered by the court, the judgment shall direct .... that the purchaser at such sale be let into possession of the premises on production of the deed; ” and in Loomis v. Wheeler, 18 Wis., 524, this rule is construed as entitling the purchaser “ to be let into possession, and, if need be, to a writ of assistance, before confirmation of the sale.” (2) Sec. 2, ch. 143 of 1877, provides that the sheriff’s deed on such a sale “ shall vest in the purchaser the same estate, and shall be as valid, as if the same were executed by the mortgagor and mortgagee to the same person, .... and the purchaser shall be let into the possession of the premises so sold, on production of such deed.” (3) The judgment in the foreclosure action, which was offered in evidence in this action by the plaintiff, adjudged that “ the purchaser or purchasers at such sale, his or their assigns, be let into possession of the premises so sold, on production of the said sheriff’s *310deed or deeds.” 2. But admit that confirmation was necessary to a valid and complete judicial sale. The sheriff’s deed, being made by statute prima, facie evidence that there was a valid sale, was prima, faoie evidence of every fact necessary to its complete validity, including, on this supposition, the fact that the sale was confirmed; and no rebutting proof was introduced. It is clear, therefore, that the nonsuit cannot be sustained on the ground that there was no proof of confirmation. 3. The rule of the common law applicable between mortgagor and mortgagee before foreclosure, as to the right to emblements, has no application to the question of the rights of the purchaser at a foreclosure sale. In the former case the mortgaged estate was a mere pledge, after the mortgagee’s entry as well as before; but the authorities are uniform that by a foreclosure sale the purchaser takes absolute title in fee to the land, and with it the right to growing crops, as against the mortgagor and all persons holding the land under him in subordination to the mortgage. Clark v. Beach, 6 Conn., 142, 162; Swift v. Edson, 5 id., 535; Lane v. King, 8 Wend., 584; Shepard v. Philbrick, 2 Denio, 174; Aldrich v. Reynolds, 1 Barb. Ch., 613; Crews v. Pendleton, 1 Leigh, 297; Jones v. Thomas, 8 Blackf., 428; Sherman v. Willett, 42 N. Y., 150; Samson v. Rose, 65 id., 411; 1 Washb. R. P., 124; Willard on R. E., 89; Taylor’s L. & T. (5th ed.), 390.