#### Sauer vs. Steinbauer.

An order of- court directing a sale of the property of a judgment debtor, is “legal process ” within the meaning of chapter 1, laws of 1855, by which the jurisdiction of the state oyer a certain piece of land therein described was *71ceded to the united States, with a proviso that such cession should not interfere with the service or execution of any legal process.

The sheriff, in executing an order of sale, must sell for cash, and the payment must be made at once upon acceptance of a bid and demand made for the money, unless delayed by the act or consent of the parties.

In default of such payment, if the parties do not consent to delay, it is the sheriff’s duty immediately to re-offer the property; and no local custom in contravention of this rule of law, is valid.

Where the mortgagor is the *sole*defendant, the mortgagee may (under the Rev. Stat. of 185S) obtain, in the same action, a judgment of foreclosure and for a sale of the mortgaged premises, and also a personal judgment against the mortgagor for the deficiency which may remain *d/ue*after applying the proceeds of the sale.

APPEAL from tbe Circuit Court for *Milwaukee*County.

*Sauer*obtained a judgment for tbe foreclosure of a mortgage executed by Steinhauer, which, after reciting that tbe referee bad reported that tbe mortgaged premises could not be sold in parcels without injury to tbe interests of tbe parties, directed tbe sale of tbe premises, without stating whether they should be sold in parcels or otherwise. Tbe sheriff advertised tbe premises for sale, and on tbe day, but before tbe hour of sale, tbe circuit court (after service upon tbe defendant of a rule to show cause &c.) made an order that tbe sheriff should sell tbe premises in one parcel and that tbe judgment of foreclosure be amended accordingly. Tbe sheriff’s report of tbe sale stated that be sold tbe property to one Merrick for $2000, be being tbe highest bidder, and that there was still due tbe plaintiff on tbe judgment $1238 17, with interest &c. Tbe confirmation of tbe sale and report was opposed by tbe defendant upon tbe affidavit of Spang-enberg, one of his attorneys, and tbe testimony of tbe sheriff. Spangenberg stated that tbe sale was made within tbe building known as tbe custom bouse, standing upon the piece of land described in the act approved January 25, 1855, entitled “ An act to cede tbe jurisdiction of the State of Wisconsin over a certain piece of land therein described, to tbe United Statesthat at the sale *Steinhauer*bid $3000 for tbe premises, and they were struck off to him by the sheriff; that *Steinhauer*stated to tbe sheriff that he would pay tbe money within tbe customary time in such cases, to wit, on tbe Monday following, *72when tbe deed should be prepared; that tbe sheriff thereupon fortbwitb offered tbe premises for sale again, and tbe same were struck off to Merrick; that said sale was made jn the afternoon of Saturday; and that tbe affiant bad been informed and believed tbat tbe sales of mortgaged premises in tbe county of Milwaukee are usually made on Saturday, and tbat it is customary for tbe sheriff of said county, in cases where tbe purchase money is actually to be paid, to bold such sales open until tbe following Monday, to enable himself to prepare tbe deed and tbe purchaser to have tbe purchase money in readiness. Tbe sheriff testified tbat when sales were made on Saturday, it was tbe usual custom not to demand money down, but to let it run until Monday at 2 o’clock; but tbat when be thought tbe party was bidding for time, be sometimes demanded tbe cash on tbe spot; and tbat in this case be demanded payment of a part of tbe purchase money on tbe day of sale, and upon *Steinbauer*stating tbat be would pay no part tbat day, but would pay tbe whole on Monday, be put tbe property up again, at tbe request of the plaintiff’s attorney, who notified *Steinbauer*or bis attorney, at tbe time of tbe sale, tbat tbe sale was for cash. Tbe court confirmed tbe sale and report, and directed judgment to be entered against tbe defendant for tbe sum reported to be still due; and from these orders tbe defendant appealed.

*Hooker & Spangeriberg,*for appellant:

1. Tbe amendment of tbe judgment on tbe day of sale was a material one (R. S., chap. 145, sec. 8), and tbe sheriff should have re-advertised tbe property. Sess. Laws, 1859, chap. 220, sec. 3; *Babcock vs. Perry,*8 Wis., 277. 2. Tbe act of selling mortgaged premises under a judgment of foreclosure and sale, is not tbe execution of legal process within tbe meaning of sec. 1, chap. 1, Laws of 1855. Constitution of Wis., Art. 7, sec. 17; R. S., chap. 136, sec. 1. Tbe Constitution of tbe U. S. empowers Congress “ to exercise exclusive legislation in all cases whatever over all places purchased,” &c. (Art. 1, sec. 8, subd. 16); and the right of exclusive legislation carries with it tbe right of exclusive jurisdiction. 2 Mason, 60, 91; 8 Mass., 72; 1 Met., 580; 17 *73Pick., *298; 5*Mason, 356. 3. The premises were not sold to the highest bidder; *Steinbauer*was entitled, by the of Milwaukee county, to pay on the Monday following the sale. 4. Since the repeal of sec, 77, chap. 84, R. S. 1849, by the revision of 1858, we have no statute authorizing the court, in a foreclosure suit, to enter judgment against the mortgagor for any deficiency.

*Jason Downer,*for respondent:

1. The original judgment authorized the sheriff to sell the whole lot in one parcel, and the additional order directing him to do so did not make it necessary for him to advertise anew. 2. Sec. 2, chap. 1, R. S., and sec. 1, chap. 1, Laws of 1855, contemplate a concurrent jurisdiction of the IT. S. and this state, over the lands to which they refer, so far as the execution of the process of courts is concerned. 3. The sheriff was not bound by a sham bid on which the pretended purchaser refused to make any payment at the time.

May 22.

*By the Court,*

DixoN, 0. J.

The order of the circuit court must be affirmed. For the purpose of executing the judgment, the place where the sale was made was as much within the jurisdiction of the sheriff as any other place within the city or county of Milwaukee. The act of cession declares-that it shall in no wise destroy, impair or interfere with the jurisdiction of this state over wrongs?, misdemeanors or crimes committed against the laws of this state, within the territory thereby ceded, nor with the service or execution of any legal process. Chapter 1, Laws of 1855. It may be true that the judgment of a court directing the sale of real estate is not a “writ” or “process” within the limited signification of those words as used in the constitution and statutes prescribing “the style of writs and process;” yet we think it would be difficult to maintain that it is not *legal process*according to its ordinary and more enlarged sense. It then signifies the means which may be lawfully used to compel the performance of any act which may become necessary in the progress of the action, or to enforce and carry into effect the judgment or decree of the court. ■ It was in this sense *74»that it was used by tbe legislature; and within it, the order of sale, considered as the means by which the judgment is to be executed, is emphatically legal process. It is the instrument provided by law for carrying into execution the judgment which the court has power to pronounce, and the acts to be performed pursuant to its requirements are purely ministerial in their character. We are therefore of opinion that the place of sale furnished no valid objection to the confirmation of the report.

The custom in the city of Milwaukee, of allowing purchasers at sheriff’s sales made on Saturday to postpone the payment of the sums bid until the following Monday, and then to pay the money and receive the conveyance, if such custom can be deemed to have been established, affords no ground for setting aside a sale because it was not complied with. Such custom, being in contravention of the rules prescribed by law for conducting such sales, is void. The sheriff has no authority to sell upon credit. He must sell for cash, and the payment must be made at once, unless it be delayed by the act or consent of the parties. Where the parties do not consent to such delay, the purchaser must be prepared to pay upon acceptance of his bid and demand made for the money; and if he does not do so, it is the duty of the sheriff immediately to re-offer the property. The validity of the practice of giving time depended therefore entirely upon the sanction of the parties in each individual case. In the present instance the creditor notified bidders that he would not be bound by it; and if he had not done so, proof of his assent would still have been required. The record contains nothing of the land. The sale was in this respect regular.

Although we now have no statute directly authorizing the entry of judgment against the mortgagor for any balance of the mortgage debt that may remain unsatisfied after a sale of the premises, still we think that by virtue of sections 29 and 80 of chapter 125 of the Revised Statutes, the order in this case must be sustained. Section 29 specifies seven classes of actions in which it is declared that the plaintiff may unite in the same complaint several causes of action, whether they are such as have heretofore been denominated *75legal or equitable, or both. The first class is where the several causes of action arise out of the same transaction, or transactions connected with the same subject of action. This case clearly belongs to this class. The barring of the de- *°*° . , fendant’s equity of redemption, after the condition or the mortgage had been broken, constituted what has heretofore been denominated an equitable cause of action. His liability for the residue of 'the mortgage debt, after the remedy under the mortgage had been exhausted, was a cause of action purely legal in its nature. Both arose out of the same transaction. Section 30 provides that the causes of action so united must all belong to one of the enumerated classes, and must affect all the parties to the action, and not require different places of trial, and must be stated separately. The causes here stated belong to the same class. They affect all the parties, the defendant being the mortgagor and the party personally liable for the deficiency; and they do not require different places of trial. Whether, if other persons, against whom no personal judgment was claimed, and who therefore would not have been affected by the legal cause of action, had been made parties defendant for the purpose of cutting off their equitable interests in the land, a like order could have been made, it is unnecessary here to inquire. In *Walton vs. Goodnow*[13 Wis., 661], we held that a demurrer to a complaint for such a joinder of actions was not frivolous. And in *Borden vs. Gilbert*[id., 670], we determined that a guarantor of a promissory note secured by a mortgage, could not be made a party defendant to an action to foreclose the mortgage, for the purpose of obtaining a judgment against him on the guaranty.

Order affirmed.