Allen v. Clark

| Wis. | Jun 15, 1874

Cole, J.

This is an appeal from an order setting aside a sale upon an execution. The motion to vacate the sale was made before the time for redemption had expired, by the execution creditor. The grounds of the motion were:

1st. That the execution was not indorsed by his attorney, and that the sheriff has indorsed no return thereon.

2d. That the plaintiff • was not informed of the sale until long after it occurred, the sale having been made February 17, 1871, and the plaintiff discovering it for the first time, May 13, 1872.'

3d. That the property sold on the execution was worth $25,000, and that the price bid was “grossly inadequate,” and was a fraud upon his rights.

The amount of the plaintiff’s judgment was $4,287.12, while the property sold on the execution was bid in by tbe appellants £or $200.

It is admitted that tbe execution was not indorsed or subscribed by tbe party issuing it, or by bis attorney, and that tbe officer making the sale has made no return upon tbe execution of bis doings by virtue of the writ. These were undoubtedly irregularities for’ which tbe sale might be vacated. Our statute, among other things, provides that tbe execution must be “ subscribed by the 'party issuing it, or his attorney ” (sec. 8, ch. 134, R. S.), and correct practice requires such an indorsement. It is argued that these irregularities in the execution are merely technical defects, not affecting the substantial validity of the sale, and were amendable by the court which had jurisdiction of the writ. It is sufficient to say, in answer to this argument, that no cross motion was made on the part of the purchasers to amend ; and when we consider some matters stated in the various affidavits used in support of as well as in resisting the motion to vacate the sale, we are not prepared to say the court erred in the exercise of its power by giving full weight to technical irregularities in the fi. fa. Some facts are given, which, if not inconsistent with the fairness of the sale, show at least that the ends of justice may be promoted by setting the sale aside. It is deemed unnecessary to dwell upon those facts at any length, and they will be only alluded to for the purpose of vindicating the correctness of the order of the court below.

It must be admitted that the judgment creditor was not consulted by his attorney in regard to the issuing of the execution, and knew nothing about the sale. He had, therefore, no opportunity to protect his rights by bidding upon the property or by giving any directions which would prevent a sacrifice of the property at the sale. It appears also-that his attorney, Mr. Park, did not attend the sale. Indeed, he says that, in order to collect costs and fees, he caused an execution to be issued, and directed the sheriff to levy upon the interest of the judgment debtor in what is called “ stump land,” having little value, and- which had for several years been sold for taxes ; and that, by neglect or misapprehension, the officer sold in a list not only the stump land but the mill property.” It is true, Mr. Park states substantially that he did not consider the debt- or’s interest in the mill property of much value, owing to the existence of a mortgage upon it prior to the judgment lien ; but nevertheless he says that he did not think the sheriff would offer the mill property for sale, and it was not intended that he should do so. The property sold upon the execution was worth at least $15,000; some persons whose affidavits were used on the motion placing its value several thousand dollars above that sum. There was a mortgage upon the mill property of a large amount, which, if paid, was unsatisfied of record. There is an irreconcilable conflict in the affidavits on the question whether this mortgage has or has not in fact been paid, in whole or in part, and* as to who is entitled to the money due upon it. Wé shall not go into any of these questions ; for it is quite impossible, in view of the widely variant statements of the witnesses upon the point, to determine what the real facts are. It is enough to say that the matter is left in great doubt, whether the mortgage is an existing lien, and whether the mill property was not sacrificed at the execution sale. The circuit court, doubtless, in deciding the motion,, took into consideration all these matters, and must have concluded' that weight should be given to even technical defects in the execution and irregularities in the sale. And in view of all the circumstances we are- not prepared to say that the circuit court did not exercise its power wisely, and that the ends of justice will not be served by vacating the sale and setting aside the execution. The terms imposed fully protect the rights oí the purchasers, or at all events are as favorable to them as the law requires.

By the Court. — The order of the circuit court, setting aside the execution and vacating the sale, is affirmed.