#### Robicheau and another, Respondents, vs. Arnovitz and another, Appellants.

*February 11*—

March 10, *1925.*

*Mortgages: Sale of premises on foreclosure: Title of piir chaser: Trespass intermediate sale and confirmation.*

Where stanchions permanently attached to a barn were removed between the dates of purchase of the property on foreclosure and the confirmation of the sale, an action for trespass was maintainable by the purchaser, there being no hiatus in title, under the rule that confirmation of a judicial sale relates back and passes title as of the date of sale.

Appeal from a judgment of the circuit court for Oconto county: W. B. Quinlan, Circuit Judge.

*Affirmed.*

This was an action to recover damages for the unlawful removal of stanchions from a barn which was part of the premises which plaintiffs had purchased on a foreclosure sale. The stanchions were permanently attached to the barn by means of concrete settings. It appears that judgment of foreclosure and sale of the property in question was duly entered, and the sheriff sold the same on November 3, 1923, to the plaintiffs, and that on that day he issued his sheriff’s deed for the property to the plaintiffs, and delivered the same on November 13, 1923. This sale and deed were confirmed by the court on November 27, 1923. The stanchions were removed between the two latter dates, that is, after the delivery of the deed to the plaintiffs and before the confirmation. Thé case was tried before the court and a jury. The jury rendered a special verdict to the effect that the defendants removed the stanchions from their concrete settings in the bam after November 13, 1923, and assessed damages at $500. The special verdict was supplemented by a decision of the court to the effect that such stanchions were removed prior to November 27, 1923, the date of the confirmation of the sale. The court rendered *398judgment in favor of the plaintiffs in the sum of $500. Defendants appeal and assign as error the failure of the court to award judgment in favor of the defendants notwithstanding the special verdict, and in granting judgment to the plaintiffs.

*Irving Breakstone*of Oconto, for the appellants.

For the respondents there was a brief by *Classon, Whit-comb & Kmenski*of Oconto, and oral argument by *A. J. Whitcomb.*

Crownhart, J.

The appellants’ counsel presents a rather ingenious argument and a rather elaborate brief, in which he contends in substance that the action of trespass was not maintainable, as the. plaintiffs were not in possession at the time; and no action for waste lies for the reason that waste requires a privity of estate and there was no privity of estate until confirmation of the deed of the sale.

We have examined counsel’s position with care, but we deem it unnecessary to elaborate upon the various propositions of law which he puts forth. We think the true rule, substantiated by authority, is that “the confirmation of a judicial sale relates back to the day of the sale and passes title as of that day, the purchaser being entitled to everything he would have been entitled to if the confirmation and conveyance of title had been contemporaneous with the salé.” 16 Ruling Case Law, 132; 35 Corp. Jur. p. 52, § 74; and authorities cited. This rule accomplishes justice and leaves no hiatus in the title. Here the plaintiffs had purchased the premises at a judicial sale. They were the equitable owners of the premises. They had paid the full purchase price. Nothing was lacking but a formal confirmation. After the sale and pending confirmation the defendants tore out the stanchions, carried them away, and injured the property, without any claim of right or justice, and they now seek to escape the consequences of their wrong *399by technical legal rules which do not and ought not apply to the facts in the case. The trespass was wilful, and the defendants were properly assessed for the damage to the property.

*By the Court.*— The judgment of the circuit court is affirmed.