#### Eaton vs. White and another.

A clause in a mortgage of certain tracts of laud “excepting therefrom so much of said tracts as have been conveyed by [the mortgagor] by *deed,*to different individuals,” does not reserve from the operation of the mortgage a portion* of said lands covered by a prior unrecorded *mortgage.*

The word “ deed” in such clause must be understood as signifying an instrument by which the land had been conveyed; especially as it appeared in evidence that the mortgagor had actually conveyed portions of said tracts of land.

*518After confirmation of a sale made under a decree, the regularity of the appointment of the person (other than the sheriff) by whom the sale and the report thereof were made, will be presumed; and courts will not inquire into it collaterally for the sake of impeaching the sale.

ERROR to tbe Circuit Court for *Fond du Lac*County.

Ejectment, for a lot of land forming part of tbe east half of tbe nortb-east quarter of a certain section of land in said county. Tbe defendent *Artemisia White*claimed title to one undivided half of tbe premises, and obtained a judgment affirming ber title thereto; to reverse wbicb tbe plaintiff below brought tbe cause to this court on writ of error. Tbe case is stated in tbe opinion.

*B. P.*Eaton, plaintiff in error,

in person, argued that tbe lot was reserved from tbe mortgage under wbicb defendants claim, by tbe words of exception therein contained (13 Wis., 75); and that there was no valid sale under tbe decree foreclosing that mortgage, tbe statute (R. S. 1849, ch. 84, sec. 82) requiring that tbe sale should be made by tbe sheriff unless otherwise ordered in tbe decree, and no order directing a sale by any other person appearing to have been made.

*GillettAc ConJelin,*for respondent.

*By the*Court,

DixoN, C. J.

Tbe plaintiff in error, who was plaintiff below, claims title to one undivided half of tbe lot through a mortgage executed by *George White*to Lane and Scott, dated May 23, 1849, and recorded June 18, 1850. Tbe defendant *Artemisia White*claims title to tbe same premises through a mortgage executed by tbe same mortgagor to Warren Ball, dated February 16, 1850, and recorded February 21, 1850. Both of these mortgages were of a much larger tract of land, of wbicb tbe undivided half lot in dispute was a part. Ball, tbe second mortgagee, testifies that at tbe time of taking and recording bis mortgage, be bad no knowledge of tbe mortgage to Lane and Scott. Under tbe registry law, therefore, bis mortgage, taken without notice of tbe previous mortgage, and being tbe first upon record, became tbe first lien upon tbe prem*519ises. In Ball’s mortgage, however, there was a reservation in these words: “ Excepting so much out of said tracts of land, as have been conveyed by the said *White*by deed to different individuals.” It is claimed by the plaintiff in error, that the Lane and Scott mortgage is within the language of this exception, and, therefore, paramount. We are of the contrary opinion, and that a fair construction of the exception requires that the mortgage should be excluded from its operation. It is true that the word “deed” is sometimes generic, and includes every writing or instrument under seal. In that sense a mortgage would be included. But it is frequently used in a much more limited sense, and signifies a writing by which lands are conveyed. This is its more popular and usual signification, and that in which it was evidently employed by the parties to the mortgage. The expression is, *“tracts of land conveyed by deed."*It appears from the case that *White*had previously- conveyed several parcels of the tract by deed, and-it was with reference to those conveyances, no doubt, that the exception was inserted.

The objection that it does not appear .that Stanehfield, who made the sale under the decree upon the Ball mortgage, was either a deputy sheriff, or specially deputed in writing by the sheriff to make the sale, comes too late. We suppose, inasmuch as Stanehfield does not sign his name as deputy, that it must be taken that he acted under special authority given by virtue of the statute now found as sec. 100, ch. 13, R. S. Indeed he says, in his affidavit, that he sold by and under the direction of the sheriff. This implies, we think, that he was specially deputed. If he was not deputed in writing, as required by the statute, the time to make that objection was when the plaintiff moved for a confirmation of the sale. After confirmation, the regularity of his appointment will be presumed, an d courts will not inquire into it collaterally for the purpose of impeaching the sale or the order of the court confirming it.

Judgment affirmed.