4 Wis. 375 | Wis. | 1856
By the Court,
For tbe better understanding of tbis case we shall state, as fully as need be, tbe material facts involved. The bill was filed by the complainant, Berry, July 29th, 1853, to foreclose .a mortgage executed tbe 30th day of September, A. D. 1845, by Reuben M. Doty and his wife, defendant herein, to Robert H. Rowen, which was subseqently assigned to the complainant. On the 6th day of February, 1851, Doty and wife mortgaged the same premises to William Nelson, one of the defendants. The other defendants are incumbrancers subsequent to Nelson. Personal service was had upon Fratt and Taylor only. The others were brought in -by publication of notice, in conformity with the provisions of the statute. There was no appearance by any of the defendants, and on the 29th day of May, 1854, a decree of foreclosure and sale was
This petition was opposed, and to defeat its object, several affidavits were presented and read, among which was that of-Eratt, one of the appellants herein, which stated that at the time of the sale he, Fratt, was an incumbrancer by mortgage, of said premises, subsequent to the mortgage of the complainant, executed by Doty and wife, for about'$700 ; that he attended the
There was also the affidavit of Alvah Goodspeed, purchaser of another parcel of the mortgaged premises, showing that he was a Iona fide purchaser at such sale for a valuable consideration, and that he supposed he obtained a good and perfect title thereby; also, the affidavit of Harriman, stating that he contracted with Eratt for the purchase of the parcels of the land bid off by him at the sale aforesaid, had paid part of the purchase money, had been in possession, and had made, or contracted to have made, improvements therein.
After the hearing, the Circuit Court denied the prayer of the petitioner, but ordered that he have leave to file his bill of complaint in the nature of a cross bill nunc pro tunc,’against Berry and Eratt for an account of, and settlement of the true amount in which the said Doty was indebted to the complainant at the date of the decree, and to compel Berry and Eratt, or either of them, to refund what they, or either of them, have wrongfully recovered or received from the sale of the aforesaid mortgaged premises, together with interest, &c.
We have fully stated the material facts in this case, because it presents a case, upon first view, of very strong equity- on the part of the purchasers and their assignee. But we have no doubt that the order of the court below upon the petition filed by Nelson, was erroneous. Were the court at liberty to set aside the positive provisions of the statute, and consider simply the equities of the parties, a case seldom occurs where the claims of an absent party and those of purchasers at a chancery sale, all occurring in apparent good faith, come so directly in conflict, and yet so strongly appeal to the favorable consideration of the court.
But we think that the positive provisions of the statute leave
Section 36 of chap. 84, Revised Statutes, provides that “ in case any such absent defendant, against whom a decree shall be made, shall within six months after notice be given him of such decree, or within three years after such decree shall have been made, if no notice as aforesaid shall have been given, petition the court touching the matter of such decree, shall pay, or secure, or, cause to be paid, such costs as the court may think reasonable to order and direct, then and in such case the person aforesaid so petitioning may be permitted to appear and answer the complainant’s bill, and thereupon such proceedings shall be had as if such absent defendant had appeared in due season, and no decree had been made; or such absent defendant may within the times aforesaid file his bill of complaint in the said court for an account and settlement,” &c.
It appears from the record, that the defendant Nelson was in time, in filing his petition, and though he might have had other modes of equitable relief at his command, he still had the one' prescribéd to him by the statute, to the full extent which the statute provides, of which he could not be deprived without his own consent.
But it is contended by the appellee, that Nelson was not such a defendant as is contemplated by the statute. The provision of the statute is, however, general, and applies as well to foreclosure suits as others. There is nothing observable, either in the language used, or the subject matter to which it relates, which can warrant the exclusion of suits of this nature from its operation.
Again it is insisted, that even if the defendant Nelson is entitled to appear and answer, such appearance ón his part cannot affect the sale made, but he will be bound to pursue the proceeds of the sale accordingly, as his equities shall be made to appear; and to support this position several authorities from New Torkhave been cited.. We have taken occasion to examine
We have no doubt but that the prayer of the petitioner ought to have been granted, and the order of the court below must be reversed and the cause remanded for further proceedings.