Newton vs. Marshall and husband. entirely inconsistent with any claim on the part of Kalk that he owned the fee of the land free and clear of the incumbrance of Mrs. Newton's claim under her mortgage. It was a perfectly clear admission on his part that he held the claim on the mortgaged property by virtue of the tax titles conveyed to him by Pier, subject to the payment of the claim of Mrs. Newton under the mortgage assigned to her to secure the $1,000 loaned to him. It would seem very clear that Kalk could not now assert a title in fee under his tax deeds, as against Mrs. Newton, had he still remained the holder of such titles. It is said by the plaintiff that Charles II. Marshall signed the same stipulation. The stipulation purports to be signed by Mr. Bragg, as his attorney. He, however, denies the authority of his attorney to sign the same. He also denies that he ever was properly made a party to the action by service of the summons, or that he appeared therein by attorney or otherwise. Without stopping to consider the question whether he can be permitted in this collateral action to controvert the record in the foreclosure action by showing that the court never in fact obtained jurisdiction of his person therein, and admitting that he was not properly made a party to the action, still he obtained his conveyance from Mr. Kalk and wife, who were parties to the action, pendente lite and long after a lis pendens was duly filed therein. And if not a party to the action, having taken his conveyance from Kalk and wife during the progress of the action to which they were parties, he is concluded by the judgment in the action in the same manner and to the same extent that his grantors, Kalk and wife, are concluded. Sec. 3187, R. S. 1878; Warner v. Trow, 36 Wis. 195, 200. For the purposes of this action, therefore, it is wholly immaterial whether Charles H. Marshall was a party to the foreclosure action or not. Having taken his title from parties to the action after the lis pendens was filed therein, he is bound by the judgment in the Newton vs. Marshall and husband. same way and to the same extent as the parties from whom he received his title are bound. As said above, there can be no doubt that, upon all the facts of the case, Kalk is estopped from setting up any claim to the lands in question hostile to the claim of Mrs. Newton upon the foreclosure sale. It is also objected by the appellants' counsel that the plaintiff did not show title to the lands upon which the alleged trespasses were committed. She established the fact that she was put into the actual possession of the premises under the foreclosure judgment and sale, and being so in possession, so far as these defendants are concerned, standing in the same situation as the parties defendant in that action stand, such possession of the plaintiff must be deemed a lawful possession, and she cannot be lawfully ousted therefrom except by some person who can establish a better title; and, as we have seen, this the defendants failed to show on the trial. Having considered the case upon the merits of the title claimed by the defendants, it is unnecessary to determine whether a party to a foreclosure action, or one who stands in the situation of a party, and who has been turned out of the possession of the mortgaged premises upon a writ of assistance in favor of the purchaser, can thereafter enter upon such premises under claim of title paramount and superior to the title of the purchaser at the mortgage sale, and defend such entry, if an action of trespass be brought against him by the purchaser so put in possession, by proving his title in such action; or whether he must resort to an action of ejectment to oust the purchaser put in possession by such writ. It is urged by the counsel for the appellants that the plaintiff, in her complaint in the foreclosure action, admits that the defendants therein, Kalk and Marshall, had a title or claim upon the mortgaged premises which was superior to Newton vs. Marshall and husband. her claim as mortgagee. We find nothing in the complaint in that action which can fairly be construed into such an admission. The allegations in the complaint relied on as admitting such fact are the following: "That defendants Charles II. Marshall [and others] have, or claim to have, by mortgage, judgment, or tax lien, some interest or lien on said real estate mortgaged as aforesaid, or in some part thereof; but such interest or lien, if any, has accrued subsequent to the lien of said mortgage." It is claimed that, because it is stated that the defendants claim a lien for taxes, such claim must necessarily be paramount to the lien of the plaintiff under her mortgage. This statement is far from being an admission of any claim on the part of the defendants superior to the plaintiff's mortgage. It is simply an admission that they claim to have a lien for taxes which may or may not be paramount to the plaintiff's mortgage, and the plaintiff would clearly have been at liberty to dispute the priority of any such claim, on the trial of the action, had the defendants set up such a paramount lien in their answer and asked to have the same determined in that action. Roche v. Knight, 21 Wis. 324; Wicke v. Lake, 21 Wis. 410; Wickes v. Lake, 25 Wis. 71. It does not amount to an admission of the fact that any of the defendants had a lien on the lands, paramount to the plaintiff's mortgage, which would estop the plaintiff from disputing such claim if insisted upon by answer in the action. Much less would it bind her in a collateral action. By the Court. affirmed. VOL. 62-2 The judgment of the circuit court is Dumke and another vs. Puhlman. DUMKE and another vs. PUHLMAN. December 1-December 16, 1884. (1) Contracts: Waiver of forfeiture for delay. (2) Evidence: Immaterial error. 1. A finding of the trial court that a forfeiture, stipulated for each day of delay beyond a certain date in the performance of a contract for furnishing machinery and setting it up in a mill, had been waived by delays in preparing the mill for the reception of the machinery, is held to be sustained by the evidence. 2. In an action tried by the court without a jury, errors in the admission of evidence are immaterial if the evidence properly admitted supports the findings. APPEAL from the Circuit Court for Sheboygan County. The facts will sufficiently appear from the opinion. The defendant appealed from a judgment in favor of the plaint iffs. For the appellant there was a brief by Seaman & Williams, and oral argument by Mr. Seaman. To the point that it was error to permit a plaintiff to answer the question whether the engine furnished was such an engine as was contemplated by the contract, they cited Reynolds v. Shanks, 23 Wis. 307; Kelley v. Fond du Lac, 31 id. 179; Mellor v. Utica, 48 id. 457. For the respondents there was a brief by Nash & Nash, and oral argument by Mr. L. J. Nash. ORTON, J. This action was brought to recover the consideration price for a Corliss engine of a certain capacity, with air-pump, condenser, and heater, and Eclipse force-pump, with valves, etc., and a boiler, with appurtenances, set up in the defendant's mill, according to a written contract between the parties, and for extra work. The only provisions of the contract necessary to be considered on this appeal are that the defendant should make the necessary foundation for the Dumke and another vs. Puhlman. engine under the supervision of the plaintiffs, and construct the parts of the mill, make the excavations, foundations, chimney, etc., which would be necessary for the putting in all of the machinery. The plaintiffs were to furnish the necessary drawings and patterns for the foundation of the engine. The contract was made March 9, 1882, and it was stipulated therein that the entire work should be completed and in running order on or before the 15th day of July thereafter, or that the plaintiffs should forfeit to the defendant $50 for each day of delay. The defendant, by answer, claimed damages for defective machinery, and the $50 per day for the delay in not completing the work and having the same in running order on or before July 15, 1882. There was a fair and exhaustive trial before the court without a jury, and the court found that the sum of $450 should be deducted from the balance of the unpaid contract price and extra work, on account of defects in the machinery, and rendered judgment for the plaintiffs for the balance. The court also found that the delay of the plaintiffs in not completing the work and having the same in running order on or before July 15th, was occasioned by the defendant in not having the foundation made in time, and in not having the mill and other necessary facilities for receiving the other works in time, and that the defendant thereby waived said forfeiture. The works were finally completed and in running order September 2, 1882, and received and used by the defendant thereafter. These are the only findings necessary to be considered in disposing of the contested points on the argument. The plaintiffs took the necessary exceptions to claim that the court made too large deductions for imperfect machinery, and the defendant claims that not enough damages were allowed on that account; but this point was not urged on the argument. The principal contention was in respect to |