8 Wis. 277 | Wis. | 1859
We do not see how, agreeably to the established rules of equity practice, the order of the court below can be sustained. The suit was commenced August 21st, 1852; the defendants were all personally served with process, and purposely made default; permitted a final decree to be made, and proof as to the mode of sale, whether in parcels or in whole, and voluntarily took their chance of protecting their rights at the sale. The appellant attended the sale, and there had ample opportunity to secure his own rights in the premises.
It is unnecessary to recapitulate the facts in this case, as they are precisely like those presented on the former appeal in this case, with one or two additions, which will be noticed hereafter. What we then said in relation to the merits of the controversy may be applied here with equal force. See Babcock vs. Perry, 4 Wis., 31. Then the application was- to vacate the default and to be permitted to file an answer. Now the motion is to set aside the former sale, and for a re-sale of the premises. The sale was made in February, 1853, and their motion is filed in May, 1856.
Waiving for the present all objections to their motion on the ground of delay in making it, we will examine the objections to the sale, made by the defendant Perry. These are: 1st. That the premises were sold together, and not in parcels; and 2nd. That on the day of, and before the sale, he offered the complainant that if he would not sell certain twenty acres of the premises, which had been purchased by him, he, Perry, would bid on the remainder the full amount of debt, interest and costs.
In answer to the first objection, it is to be observed that the sheriff as well as the party was bound to pursue the order of the court in making the sale, and that order was that the premises should be sold together. It is not compe
But, setting this consideration aside, and supposing th at the defendant Perry did agree, if the complainant would release twenty acres from the operation of the decree, to bid the full amount of debt, interest and costs for the remainder, it was difficult to perceive how he was or could be injured by including the twenty acres in the sale. If Perry had bid the amount of the debt, interest and costs for the premises, less the twenty acres, would he have been any worse off if the twenty acres were included ? In the latter case he would have been the owner of the whole premises for the same sum as in the former case. Including the twenty acres in the sale would not increase the cost in the least. The deed and confirmation would certainly constitute as good a title to the twenty acres as the release of the complainant without sale. There is nothing then in this offer which suggests any equitable consideration whatever, but on the contrary, taken in connection with the threat made at the time, that if the complainant did proceed to sell, the defendant would procure the sale to be set aside with costs, the offer is not altogether so frank and candid as good faith would seem to require.
But the defendant Perry says in his affidavit that on the day of sale, and before the sale, he offered to the complainant the whole amount of his debt, interest and costs, if he would not sell the premises. If this fact was clearly established by uncontradicted evidence, we should struggle hard to set aside the sale, notwithstanding the lapse of time and the laches of
In his petition for a re-hearing, the defendant Perry states that he made default because he did not wish to incur the expense of a defence, and because he supposed the premises would be sold in parcels, and he could protect himself at the sale. Now he applies for a re-sale, and states that before the sale he offered and tendered the complainant the full amount of his debt, interest and costs. We have already disposed of this latter allegation. It is certainly true that the defendant might have protected his interest at the sale. He could have bid the amount and taken the whole property, just as well as to bid the amount for a part of it.
Upon a careful review of the whole case, considering the
The order of the circuit court must be reversed and the cause remanded.