Only a few words need be said in answer to the elaborate argument filed on the motion for rehearing. In the above opinion attention is called to the important fact, that in Lane v. King and the other cases the purchaser at the foreclosure sale had entered into the actual possession of the premises, and this circumstance distinguishes those cases from the one at bar. If counsel will but refer to Lane v. King, they will find this stated as a fact, that the purchaser, King, put a tenant into possession, and that, “ at the time of the entry of the tenant of King, there was a crop of rye in the ground on *311that portion of tbe farm let to Lane [who was the tenant of the mortgagor], and when the grain was fit for harvesting, Lane entered and cut and carried away the grain, for the doing of which King sued him in trespass.”
In Shepard v. Philbrick, Jewett, J., says at the close of the opinion: “ Shepard, having acquired the title to the mortgaged premises, which carried with it a title to the crop growing, and having acquired actual possession of the premises, showed a perfect title to the wheat in controversy, as well against Wright as Philbrick, the latter having no greater right or interest* in the crop than the former would have had if it had not been sold on execution against him prior to the sale under the mortgage.” In Sherman v. Willett, 42 N. Y., 146, the mortgagee, Cornell, as administrator of the estate of the mortgagor, sold the growing crop on a public administrator’s sale to the plaintiff, and he was held estopped from after-wards setting up any title or claim against his own sale. In Aldrich v. Reynolds, 1 Barb. Ch., 613, the mortgaged premises were advertised for sale under the statute, and the mortgagor obtained an injunction staying the sale, giving a bond for damages, etc. During the continuance of the injunction, he cut and removed the crops and grass from the premises. The premises did not finally sell for enough to discharge the mortgage debt, and the mortgagee was allowed, as part of his damages by reason of the injunction, the value of the crops and grass taken from the premises during the time the sale was stayed. The other authorities referred to on this point, in the argument on the motion, except the one in our own court, require no further comment.
II. But it is insisted that this court, in Loomis v. Wheeler, 18 Wis., 524, decided that no confirmation of sale under a foreclosure was necessary to vest in the purchaser at such sale the complete title of the property sold, and the right of 0 possession, and that this case is decisive upon the question before us. That was an action brought by the purchaser at the *312foreclosure sale, against the sheriff who made such sale and gave the deed, to recover damages for his refusing to execute a writ of assistance putting the plaintiff in possession. It was held, on demurrer, that the complaint stated no cause of action for reasons given in the opinion. Chief Justice DixoN further adds, that under rule 31, Rules of 1857, the purchaser at the foreclosure sale was entitled to be put into possession by a writ of assistance before the sale was confirmed. These remarks of the learned chief justice were, of course, obiter, and cannot properly be said to be a binding decision upon the point under consideration. We will also say that we are not entirely satisfied that the construction placed upon the rules of 1857 by the chief justice in that case, is correct. We do not think that these rules were intended to, or do in fact, change the long settled rule in chancery practice, that the sale should be confirmed before the purchaser is entitled to have the process of the court to put him into possession of the premises. Unde;-that practice, it is well known that the application for the writ of assistance stated that the sale had been confirmed, and that a certified copy of the order of confirmation, together with the deed, was exhibited to the defendant when possession of the premises was demanded. See Appendix of Precedents in 3 Barb. Ch. Prac., bottom page 625. Nor does ch. 143, Laws of 1877, change this rule of practice-, and render a confirmation of the sale unnecessary. We have been unable to find any well considered case which holds that a purchaser at the foreclosure sale can maintain an action of replevin for the crops growing upon the ground at the time of such sale, where the sale has neither been confirmed, nor possession of the mortgaged premises acquired- by such purchaser. We therefore think that the former opinion was sound, and the motion for a rehearing must be denied.
By the Court. — Motion denied.