#### Fladland vs. Delaplaine and another.

Under sec. 45, p. 28?, of the Territorial Statutes of 1839, which provides that in a chancery suit the court may by order direct anon-resident defendant to appear, plead, &c., “at a certain day therein to be named, not less than three nor more than sis months from the date of such order,” and subd. 10, sec. 1, p. 35, which provides that in the construction of statutes the word “ month” shall be construed to mean a calendar month, unless otherwise expressed, an order of court in a foreclosure suit which required the mortgagor to answer “ within ninety days,” did not confer any jurisdiction over his person or property, and the proceedings in the suit were void as to him.

Whether or not a mortgagee (or his assignee), after the mortgage debt is past due, can maintain an action of ejectment to recover the mortgaged premises against a stranger to the mortgagor, claiming under a tax deed (a point not here decided),' he must at least, in order to maintain his action, prove that there was a debt past due and unpaid, secured by his mortgage; and a decree in foreclosure of such mortgage, where jurisdiction was not obtained over the mortgagor, is not evidence of those facts as against such stranger.

ERROR to tbe Circuit Court for *Dane*County.

The action below was ejectment by *Delaplaine*and *Burdich*against *Fladland.*The plaintiffs’ title was derived through a mesne conveyance from one Jesse Rhodes ; and to establish title in the latter they put in evidence the record of a decree and proceedings in a suit in said court brought by said Rhodes against John Liedburg and Davenport Rood to foreclose a mortgage of the premises here in dispute. *Fladland*objected to the evidence, for the reason, among others, that no personal service of the summons was made upon Liedburg (who was the mortgagor), and that the order for publication (which was not dated), required him to appear and plead within ninety days, while by the statute then in force he was entitled to not less than three calendar months; but the objection was overruled. — Judgment was rendered for the plaintiffs ; to reverse which the defendant brought the present suit.

*Welch &*Lamb, and *P. L.*Spooner, for plaintiff in error.

*Gregory & Pinney,*for defendants in error :

1. The order of publication was at most irregular, and might have been set aside on motion, but it was not void. But it *460will be found, we tbink, that the order was regular in all respects. It was made before tbe R. S. of 1849 took effect, which provided that when the word “ month” was used, it should be construed to mean a calendar month. There was no such statute in force then, and the word “month,” as used in R. S. 1839, p. 287, § 45, means a lunar month. 2 Black. Com., 141; *Loring v. Hailing,*15 Johns., 119 ; *Tullet v.*Linfield, 3 Burr., 1455; Doug., 446, 463; 1 W. Black., 450; 4 Wend., 512; 2 Cow., 518, 605 ; 6 Term, 226; 1 Johns. Cas., 100. 2. But were we to concede that the foreclosure is defective, the plaintiffs would be assignees of the mortgage interest of Rhodes, and as such could maintain the action against the defendant, who is a stranger to the mortgagor, claiming under a third party. The mortgage became due June 24, 1849. The equity of redemption expired June 24, 1859 (R. S., ch. 138, sec. 22; R S. 1849, ch. 127, sec. 27); and therefore the plaintiffs can maintain the action whether the foreclosure is void or not. R. S., ch. 141, sec. 28.

*By the Court,*

Dowwer, J.

Davenport R<pod conveyed the premises in dispute to John Liedburg, who 'executed a mortgage to Rood to secure the purchase money. Suit was brought to foreclose the mortgage in the circuit court for the county of Dane by Jesse Rhodes, the assignee of Rood, and he and Lied-burg were the only defendants to the action. There was no personal service on Liedburg, nor did he appear in the action^ and if there was any service on him at all, it was by the publication of an order for him to appear and plead. The record in this court shows neither the date of the order nor the time it was filed in the circuit court. The defendants in error, plaintiffs below, trace their title to the premises through the foreclosure decree and sale under it. It is insisted that the proceedings in that action are void, and we think they are as to the defendant Liedburg. The Revised Statutes of 1839, which the counsel for the defendants in error claim were in *461force at the time the order of publication was made, provide (sec. 45, p. 287) that “ the court may by order direct such absent defendant to appear, plead, answer or demur to the complainant’s bill of complaint at a certain day therein to be named, not less than three nor more than six months from the date of such order.” The tenth subdivision of section one of “ An act concerning the construction of statutes” (R. S. 1889, p. 85), provides that the word “month” shall be construed to mean a calendar month, unless otherwise expressed. According to these provisions the order should have required Liedburg to appear and answer the bill on a *day*certain, not less than *three months*from the date of the order. The order made fixes no day on which he should appear and answer, but requires him to do it in less than three months. In proceedings against absent or non-resident defendants, where there is no personal service, the courts have uniformly held that the directions of the statute must be strictly followed. In this case there is no pretense that the circuit court obtained jurisdiction as to Lied-burg and his property in any other way than by virtue of the order and its publication. This order was not such as the statute authorized. If it would be valid when it required the defendant to answer *within ninety*days, instead of *on a certain day beyond the period of three calendar*months, it would be valid if it required him' to answer in thirty days or any shorter time. It is clear to us that the proceedings in the foreclosure suit are entirely void as to Liedburg.

But it is said, *“*Concede that the foreclosure is defective, the plaintiffs below would be assignees of the mortgage interest of Rhodes, and as such could maintain the action of ejectment against *Fladland."*If we were to concede that a mortgagee, after the debt secured by the mortgage was past due, could maintain an action of ejectment to recover the mortgaged premises, it would not follow that the plaintiffs below could maintain this action. Rhodes was assignee of the mortgage before the foreclosure suit was commenced; and after he re*462ceived the sheriff’s deed as purchaser at the sale under the foreclosure judgment, he was only assignee, Exclude the foreclosure record entirely, and the rights of the parties would be the same. If Rhodes himself had brought the action of ejectment, he must, as against the defendant below, a stranger to the mortgage, have proved that there was a debt past due and unpaid, secured by the mortgage. The record before us furnishes no such proof, or rather nothing that is evidence on this point against the defendant below. *

The judgment of the court below is reversed, with costs, and • a *venire de novo*awarded.