#### Williams, Appellant, vs. Thrall and others, Respondents.

*April 4*

May *21, 1918.*

*Execution: Sale of land: Redemption: Statement of amount: When Uncling .on sheriff: Payment to agent: Special verdict: Refusal of tender: Liability for loss of title: Equity: Quieting title: Parties: Pleading: Amendment: Limitation of actions.*

1. Whére, within a year after the sale of land on execution, the owner informs the sheriff that he wishes to redeem and the sheriff undertakes to compute and to state the amount necessary to he paid, he is hound hy such statement, and the' payment or tender hy the owner of the amount so stated constitutes a redemption, even though said amount was less than the proper amount.

[2. Whether or not the sheriff is hound in such a case to furnish the owner with a statement of the amount necessary to redeem, is not decided.]

3. Findings in a special verdict to the effect that a sheriff made the clerk of court his agent to receive money in redemption of land from an execution sale, and that the money was paid to said clerk, are not inconsistent, the latter finding meaning that the manual delivery of the money was to the clerk, hut to him as agent of and for the sheriff.

*4114. Refusal of a sheriff to accept money tendered in redemption of land sold on execution does not create a liability against him and his bondsmen unless the owner thereby lost title to the land or some part of it; and there was no such loss of title as \ against the purchaser at the execution sale if such tender in fact constituted a redemption.

5. If in such case there was in fact a redemption and the title to any portion of the land has been lost by sales to innocent purchasers, the owner has a claim against the sheriff and his bondsmen for the damages resulting from such loss.

6. For a proper determination of the facts in such a case there should be an action in equity to quiet title and, incidentally, for damages against the sheriff in case the title has been lost; and in such action, besides the sheriff and his bondsmen, the purchaser at the execution sale and all other persons in possession or claiming any interest in the land should be made parties. Where an action has been brought against the sheriff and his bondsmen only, the court may order the pleadings to be amended and new parties brought in, as stated.

. 7. The action in such case would not be barred until the expiration of ten years, under sub. 4, sec. 4221, Stats.

Appeal from an order of tbe circuit court for Green Lake county: Ohestee A. Eowlbe, Circuit Judge.

*Affirmed.*

*'*Tbe appeal is from an order setting aside tbe verdict and granting a new trial.

Tbe action was brought against tbe defendant *Thrall*as sheriff and bis sureties on tbe official bond of tbe sheriff. Tbe defendant sheriff sold real estate of tbe plaintiff on execution. Tbe certificate of sale to tbe purchaser, H. R. Laing,-bore date September 19, 1908. Tbe land sold for $820.-Plaintiff took steps to redeem from tbe sale prior to September 19, 1909. Tbe defendant sheriff, through bis agent, tbe clerk of tbe court, computed tbe amount necessary to redeem, and plaintiff paid $85 and agreed to send tbe balance before time to redeem expired, which she did.

Tbe evidence shows without dispute, that tbe value of tbe plaintiff’s equity of redemption in tbe land sold was $6,824. Tbe plaintiff claimed judgment for tbe amount of tbe value of tbe equity of redemption.

*412Tbe jury found (1) that the plaintiff informed the defendant *Thrall*that she wished to redeem the land from sheriff’s sale; (2) that defendant *Thrall*made Yahr, the clerk of the court, his agent for receiving money from plaintiff in redemption of lands from the sheriff’s sale; (3) that the $85 was paid to the clerk of the court, Yahr, and the value of the plaintiff’s interest in the property which she sought to redeem was $3,000.

Plaintiff moved after verdict that the answer to the fourth question, $3,000, be changed to $6,824, and for judgment on the verdict as amenáed. Defendant moved for judgment notwithstanding the verdict, for the changing of certain questions, to set aside the verdict, and for new trial.

The court denied all motions except the one to set aside the A'-erdict and for new trial, and ordered a new trial on the ground that the special verdict of the jury was inconsistent, perverse, and the result of compromise. Plaintiff appealed from the order.

For the appellant there was a brief by *Dillon & Tomhins*of Ashland, and oral argument by *A. Pearce Tomhins.*

For the respondents there was a brief by *J. L. Kelley*of Wausau and *Perry Nishern*of Berlin, and oral argument by *Mr. Kelley.*

IÍERAyiN, J.

It is established by the verdict of the jury - and the evidence that on May 4, 1907, a judgment in favor of II. B. Laing against the plaintiff was docketed in the circuit court for Waushara county for $710.-16, which judgment was afterwards docketed in Green Lake county June 3, 1907; that on July 6, 1908, execution was issrred out of the circuit court for Waushara county directing the sheriff of Green Lake county to satisfy said judgment out of property in the latter county; and that L. A. Merrill, then sheriff of Green Lake .county and predecessor in office of the defendant Thrall, levied upon several parcels of land in which plaintiff *413bad an interest and sold tbe same to said Laing for $820.24 September 19, 1908, and on said date issued a certificate of •sale to bim. Tbe plaintiff lived at Ashland, and on tbe 13tb day of September, 1909, went to Green Lake for tbe purpose of redeeming said real estate from tbe sale. Sbe testified that sbe went to defendant *Thrall*and told bim tbat sbe wanted to redeem tbe property so sold and asked bim to figure out tbe exact amount necessary for ber to pay in order to redeem, and said tbat sbe bad come from Ashland for tbe express purpose of saving tbe property before tbe time expired to redeem; tbat tbe sheriff told ber tbat be bad orders not to deal with ber, tbat sbe must go to other parties, naming H. R. Laing and C. S. Morris, and said be bad been advised by bis attorney over tbe phone to pay tbe money into court; tbat defendant *Thrall*went with plaintiff to tbe clerk of tbe court, Yabr, and told ber to pay tbe money to Mr. Yabr; that she informed Yabr which pieces of land sbe wished to redeem and asked bim to compute tbe correct amount, and .Yabr figured tbe amount which be claimed was necessary to redeem as $805.80; tbat sbe then paid defendant *Thrall*$85, which be turned over to Yabr, clerk of tbe court, and sbe promised to send tbe bálance, $720.80, as directed by *Thrall. ■*This amount sbe afterwards sent in tbe form of a draft, dated September 15, 1909, payable to Yabr, clerk of tbe court, in a letter to defendant *Thrall,*which was received by bim September 16, 1909. This draft was returned by defendant *Thrall*to tbe plaintiff, after having been ' banded back to bim by Yabr, in a letter dated September 21, ■ 1909, and received by plaintiff September 22, 1909, tbe only explanation in *Thrall’s*letter being, “It is no good to me.”

Tbe defendants claim that tbe plaintiff did not tell *Thrall*sbe wished to redeem any land from tbe sale, but tbat sbe stated sbe wanted to know tbe amount of tbe judgment.

Tbe jury found in accordance with tbe plaintiff’s contention tbat sbe informed the defendant *Thrall*sbe wished to *414redeem the lands from sheriff’s sale; that the defendant *Thrall*made Yahr, clerk of the court, his agent for receiving money from plaintiff in redemption of the lands; that the $85 was paid to Yahr; and that in September, 1909, the plaintiff’s interest in the property which she wished to redeem was $3,000. It also appears that the amount computed by the clerk, acting for the sheriff, was simply the amount of the judgment and interest, which was something over $50 short of the correct amount necessary to redeem from the sale.

If the facts be as testified to by the plaintiff, we are convinced there was a valid redemption of the land in question. It is contended on the part of the respondents that because the full amount necessary to redeem was not paid or tendered there was no redemption; while on the part of the appellant it is, contended that since the defendant sheriff through his agent, Yahr, undertook to compute the amount necessary to-be paid in order to redeem, and plaintiff paid or tendered such amount, there was a redemption. In other words, that the sheriff was bound by the amount stated when he undertook to compute the amount necessary for plaintiff to redeem. Whether the sheriff was bound to furnish the plaintiff, with a statement of the amount necessary to redeem we need not and do not decide, yet if he did so he was bound by the amount stated and relied upon by plaintiff, and the payment or tender of such amount constituted a redemption. *Hall v.*Fisher, 9 Barb. 17; *Id.*1 Barb. Ch. 53.

But while we are of opinión that if the facts testified to by plaintiff are true there was a redemption, the question arises as to what the judgment in such ease should be. Should the plaintiff have judgment for the value of the equity of redemption, or should there be, upon such facts, redemption of the property if redemption can now be had on payment to the purchaser of the proper amount ? Our statute provides that upon payment made of the proper amount to redeem, the sale and certificate of sale shall be null and void. Sec. 3005, Stats. Whilé the court below set aside the verdict on the *415ground of inconsistency and compromise, it is obvious from tbe opinion of tbe learned trial judge in tbe record tbat be was of opinion tbat tbe plaintiff should not bave judgment against the sheriff and bondsmen for tbe value of tbe equity of redemption and thus leave tbe matter unsettled between tbe sheriff and purchaser, but tbat tbe remedy should be in equity and all parties interested brought into court and their rights settled in this action.

It is true tbat tbe jury found by tbe fourth question tbat plaintiff’s interest in tbe property was $3,000, while in fact tbe undisputed evidence showed it to be $6,824. Tbe answer to the fourth question, we think, was wrong and unsupported by tbe evidence and might bave been corrected by tbe court, but in all other respects we think tbe verdict was consistent and supported.

Point is made in tbe opinion of tbe trial judge tbat there was inconsistency between tbe answers to tbe second and third questions of tbe special verdict to tbe effect tbat, if Yabr'was tbe agent of *Thrall,*tbe $85 was necessarily paid to *Thrall*and tbe jury found tbat it was paid to Yabr. But it seems obvious tbat tbe jury, in finding by tbe second question tbat *Thrall*made Yabr bis agent for receiving tbe money from plaintiff in redemption of tbe lands from' sheriff’s sale, and by tbe third question tbat tbe $85 was paid to Yabr, meant tbat tbe manual delivery of tbe money was to Yabr, but to him as agent of *Thrall*and for *Thrall.*

We bold tbat tbe plaintiff cannot recover against tbe defendants sheriff and bondsmen unless she has lost tbe title to tbe land or a portion of it, and she has not lost it as against tbe purchaser if she in fact redeemed. See. 3005, Stats. While tbe facts testified to by tbe plaintiff would establish a redemption, still tbe verdict to tbat effect does not bind tbe purchaser, since be was not a party to tbe action, and be is entitled to bis day in court on tbe question of redemption. If it be found on another trial, as established by .the record here, tbat plaintiff told tbe defendant sheriff she wanted to *416redeem from the sale, and be, through the clerk, gave her the amount and she paid or tendered it to him within the year, it was in fact a redemption though the sum was too small.

If the land was redeemed from the sale it still belongs to plaintiff as against the purchaser and all who purchased with notice. If parts of the land have been sold to persons who claim to be innocent purchasers, they should be brought into this action and their rights determined.

Whether under sec. 3005, Stats., any title can be acquired by any purchaser, however innocent, is not now decided and no opinion is intimated thereon. • If title to any part of the land has been lost the plaintiff would have a claim against defendants for the damages resulting from such loss, provided it be established that a redemption was in fact made.

When the new parties are brought in, new pleadings should be required of all parties and the action transformed into an action by the plaintiff to quiet title, and for damages incidentally against the sheriff in case title to the land has been lost. This will be an action in equity, outside of the statutory action to quiet title, and will evidently fall under the fourth subdivisión of sec. 4221, Stats., heneé is not barred until expiration of ten years. *Post v.*Campbell, 110 Wis. 378, 85 N. W. 1032.

As the record now stands there is nothing to show but that plaintiff, upon payment of the proper amount, may have redemption of the premises, the sheriff’s deed set aside, and the title quieted in her, and this, under the circumstances as shown by the record, would seem to be the most efficient and proper remedy. If it shall appear, when all parties interested or claiming; to be interested are before the court and their rights determined, that there was redemption and that plaintiff cannot obtain complete relief by recovery of her property, she may have judgment for damages against the defendants.

There can be no doubt, as suggested by the trial judge in his opinion, but that the court below has ample power to *417bring in tbe purchaser, Laing,. and any and all other persons in possession or claiming any interest in the premises so that their claims may be adjusted and it be determined whether the sheriff’s deed to Laing should be canceled and the cloud removed upon payment to Laing by plaintiff of the proper amount. Under our statutes there is ample power to proceed as indicated. Secs. 2603, 2610, and *2836b.*

We hold that the order granting a new trial should be affirmed, that the court below order the purchaser at the sale, H. R. Laing, and each and every person in possession of the real estate in question, or claiming any interest therein, to be made parties to the action, and that the pleadings be so amended as to present all issues.

*By the Gourt.*— The order appealed from is affirmed, and the cause remanded for further proceedings in accordance with this opinion.