tection of the crops. The principle seems to be recognized in the case of Mutual Life Ins. Co. v. Bigler 79 N. Y. 568, just decided by the Court of Appeals. But that is not now important. Whenever the proceedings are not void and the record of the mortgage is regular, the title of the purchaser in these sales in equity under foreclosure decrees takes effect by relation to the delivery of the mortgage as against all intervening purchasers and encumbrancers who are made parties or who become interested pendente lite. Osterberg v. Union Trust Co. 93 U. S. 424; Rorer Judicial Sales § 53; 5 Cruise R. P. 510, 511.

The same principle operates to connect the confirmation of the sale as to the growing crops with the sale itself, and to satisfy the sort of condition subsequent to which, by virtue of the practice of the court, the sale is made subject. And where there is no unreasonable or misleading conduct or delay, and no equities will be infringed, the confirmation is entitled to operate in favor of the purchaser's right from the time of the sale itself, as respects the crops which were not then severed. To preclude misapprehension, it may be added that there may be cases where the purchaser's conduct would require the court to consider him as having waived or abandoned all right to the crops, or as having estopped himself against asserting any. Such cases must be disposed of as they arise. Here there was no delay of which Ruggles can complain, nor any misleading conduct. He received no prejudice. The proceedings to confirm were commenced on the very day of the sale, and we are not informed that there was any objection which was not frivolous; and as we have seen, Ruggles was seasonably notified that the bank claimed these crops under its purchase, and that he must not appropriate them. This purpose was never departed from.

No error is shown, and the judgment should be affirmed with costs.

MARSTON, C. J., and CAMPBELL, J., concurred.

COOLEY, J., dissenting. Ruggles was sued in the court below in trover for oats and peppermint grown upon a certain farm in St. Joseph county in the year 1877. Ruggles had bought the farm at a sale in bankruptcy made December 18, 1877. The plaintiff below at that time had a mortgage upon it, which was in process of foreclosure, and the purchase of Ruggles was made subject to it. The oats were sown by him in the spring of 1878, and both crops were harvested and removed by him from the farm August 5, 1878. The questions in the case arise chiefly on the foreclosure of the mortgage, which took place in chancery. The decree bore date February 7, 1878, and authorized a sale at any time after May 29, 1878, and after due notice. It also provided that "the purchaser or purchasers of said mortgaged premises at such sale be let into possession thereof, and that any of the parties to this cause who may be in possession of said premises or any part thereof, and any person who, since the commencement of this suit, has come into possession under them or either of them, deliver possession thereof to such purchaser or purchasers on production of the commissioner's deed for such premises, and a certified copy of the order confirming the report of such sale after such order has become absolute."

No question is made of the validity of the decree. Sale was made under it July 15, 1878, and the commissioner's report of sale was filed the same day. Two of the defendants in the suit filed exceptions July 19th, and on August 6 complainant applied for leave to the commissioner to file an amended report, which was given. The amended report was filed the same day, and exceptions were also filed thereto. These last exceptions were brought to a hearing August 20, whereupon the court made the following order:

"The exceptions to the commissioner's report of sale in this cause coming on to be heard, and having been argued by counsel for the respective parties; it is hereby ordered that said commissioner correct his said report and file the same with the register within ten days, and upon filing the said corrected report the said sale be and the same is hereby in all respects confirmed. And it is further ordered that the complainant pay to the

defendants five dollars as an attorney's fee upon said. hearing."

It will be noted that this order does not specify in what particular the report shall be amended, nor is there anything in the record to show what correction the court had in mind. The order plainly does contemplate, however, that the report will be taken from the files for the purpose of correction, and after being corrected, refiled, within ten days, whereupon it shall stand confirmed. On the trial of this cause the plaintiff was allowed to put in parol evidence in explanation of this order, but no one seemed to be able to state with certainty what correction was intended. The commissioner who made the sale seems to have had his attention called to the matter by the acting register within two or three days after the making of the order, but the register did not know what correction was required. The commissioner took the report and looked it over, and finding an error in a date, corrected that, assuming that nothing more was requisite. There does not appear to have been any refiling, and if the defendant, or any other person, had desired information respecting the time when the report became confirmed, he would have searched the records for it in vain. Indeed, the defendant offered to show that he examined the files from time to time afterwards, in order to ascertain if any further report was filed, but the offer was overruled. No further action of the court in the premises appears. The defendant remained in possession of the land some two months after taking off the crops, but under what circumstances he then surrendered possession does not appear, and perhaps is not important. The usual commissioner's deed on chancery sales was executed and delivered to the plaintiff, and probably possession was taken under it as soon as defendant left.

The plaintiff's case rests upon two propositions: first, that the sale was confirmed; and second, that on confirmation his title related back to the time of the sale,

and made the crops his which were taken off subsequently. It is not claimed the crops would have been his in the absence of a confirmation.

The confirmation is said to have been complete, because no correction of the report was required, except the mere alteration of a date, and that might properly be corrected in the mode the commissioner adopted. But in saying this, the facts upon which it rests are assumed: nothing in the record supplies or suggests them. Whether it was the date the court had in mind, or something else, or many things else, we do not know. It seems hardly necessary to say that the evidences of that judicial intent which is to extinguish rights and transfer titles must appear of record, and cannot be left to rest on the mere understanding of parties who may have heard what the judge said. Still less can it be effective when only guessed at by persons to whom it was never communicated, and who have no better means of arriving at it than by applying their own judgment to the facts which they supposed were before the judge, and inferring therefrom the judgment he should have pronounced. A solemn judgment, which is to have faith and credit, and be undisputed and undisputable everywhere cannot be left to stand partly upon writings and partly upon the surmises and suppositions of parties or officers as to what the court intended. It must speak for itself and in no uncertain language.

No confirmation of the sale being shown, it follows that the plaintiff has shown no title to the specific chattels for the conversion of which the suit is brought. The case of Wohler v. Endter 46 Wis. 304, in which a careful opinion was delivered by Mr. Justice Cole, fully covers the case. Giles v. Comstock 4 N. Y. 270 is also in point. That was a suit brought by a party defendant in a foreclosure suit to recover a quarter's rent falling due in advance, April 1, 1845, upon a lease by himself to the occupant. The premises were actually sold on the decree three days before the rent fell due, but the sale was

43 MICH.-26.

not confirmed until two months afterwards. The tenant attorned to the purchaser, but was sued by his landlord for the rent. The court sustained the action, affirming that the purchaser under the decree had no right whatever to the rent which had become payable by the terms of the lease after the sale, but previous to the confirmation, and that the tenant wrongfully attorned to him. Says Mr. Justice Taylor, speaking for the whole court: "According to the terms of the decree under which the purchaser claimed, the parties to that foreclosure suit, who might be in possession of the premises sold, were ordered to deliver possession to the purchaser on production of the master's deed and a certified copy of the order confirming the report of sale after the same should have become absolute. Under this decree, it seems to me that the defendant, being a party to that suit, and representing the owner of the equity of redemption, was entitled to hold possession, until by the terms of the decree he was ordered to surrender it, and although an eviction by process of law is not necessary to justify an attornment of the tenant, yet for his justification he must be able to show that the claimant by paramount title has a legal and equitable right to the possession of the premises in præsenti." Because the purchaser had no such paramount title before confirmation of his purchase, the court found the attornment unauthorized. I agree with the court fully to this extent, and express no opinion on the further conclusion that the confirmation could not relate back so as to give the purchaser rights from the date of the sale as against any one standing in the right of the mortgagor. I do not think that question is before us.

The necessary conclusion is that the circuit court erred in giving judgment for the plaintiff for the value of the crops removed, and that the judgment should be set aside with costs and a new trial awarded.