De Young v. Koehler

181 Wis. 415 | Wis. | 1923

Crownhart, J.

It is the contention of the appellant that the foreclosure by advertisement was invalid for the reason that no notice of the foreclosure and sale was given to the administrator or heirs of the deceased mortgagor. The proceeding to execute a power of sale in a mortgage by advertisement is not an action or proceeding in court. It is an exercise of the power granted by contract, and may be executed by the persons to whom the power is granted in the manner provided in the contract, unless prohibited by law. Hayes v. Frey, 54 Wis. 503, 517, 11 N. W. 695. Ch. 152, Stats., provides for the foreclosure of mortgages by advertisement. It is conceded that the mortgage in question was foreclosed in accordance with this chapter. But it is claimed that because it is provided therein that notice that the mortgage will be foreclosed by sale of the premises is not required to be given to the parties not found within the county, it is a taking of property without due process of law, in violation of the Fourteenth amendment of the constitution of the United States and art. I of the constitution of Wisconsin. This contention cannot prevail for the reason that the foreclosure was pursuant to a power of sale in the mortgage itself. A power of sale in a mortgage, when properly executed, enables the mortgagee to effect a complete foreclosure by ex parte proceedings without submitting his rights to a court of law or of equity and without invoking the aid of a court. This method of foreclosure is not in any sense a suit or action, and will be reviewed by the courts only to the extent of seeing’that the sale was justified by default and was made in strict conformity to the terms of the mortgage and was free from fraud. 27 Cyc. 1449. There is no claim of fraud in this case.

A further reason why the complaint was properly dismissed is that the plaintiff received timely notice of the foreclosure and had the opportunity to redeem. As a junior mortgagee this was his only right in the premises, and his failure to exercise his right left him without standing in a court of equity. Schroeder v. Richardson, 101 Wis. 529, 78 N. W. 178.

By the Court. — The judgment of the circuit court is affirmed.