28 Wis. 272 | Wis. | 1871
Tbe-statute authorizing tbe foreclosure of mortgages by advertisement includes by its very terms every mortgage of real estate containing a power of sale, and makes no exception in favor of insane persons, idiots, lunatics, infants or others under disability. Tbe language is: “ Every mortgage of real estate, containing a power of sale, upon default being made in any condition of such mortgage, may be foreclosed by advertisement, in tbe cases and in tbe manner hereinafter specified.” B. S.,’ch. 154, sec. 1. Tbe proposition, however it may once have been held or considered, tbat tbe courts, upon what is termed an equitable construction or otherwise, may, against tbe plain language of a statute and in opposition to tbe intent clearly expressed by tbe words, mitigate tbe “violence of tbe letter ” by introducing exceptions where tbe statute itself contains none, so as to relieve in cases of hardship or particular inconvenience, has been too long and too frequently rejected to be now tbe subject of serious argument or doubt. Such_doc-trine, if it ever existed, was long since exploded, and tbe rule now universally recognized and acted upon is, tbat whatever else may be done with tbe words of a statute, they may never, in tbe language of Lord BACON, “ be taken to a repugnant intent.” ' See tbe language of KeNT, Chancellor, in Demarest v. Wynkoop, 3 Johns. Ch. R., 142, and of Lord Tenterden, C. J., in Brandling v. Barrington, 6 Barn. & Cress., 475. When, therefore, tbe statute says tbat every mortgage containing a power of sale may be foreclosed by advertisement, and makes no exception of a mortgage upon lands belonging to an insane person, such mortgage cannot be excluded from tbe operation of
We are of opinion, therefore, tbat there can be no limitation or restraint put upon tbe statute by construction on tbe part of tbis court, so as to exclude from its operation tbe case of a mortgagor who is insane at tbe time of foreclosure. Tbe statute plainly authorizes sucb foreclosure; and so far as tbat authority goes, neither tbe proceedings of'tbe mortgagee nor tbe title of tbe purchaser can be lawfully disturbed.
But although sucb is tbe situation of tbe purchaser and tbe nature of tbe proceedings upon a proper construction of tbe statute, we are still of opinion tbat there exist other grounds upon which tbe sale must be set aside, and tbe title remitted to tbe mortgagor or bis legal representative as it stood before tbe
The mortgage was foreclosed and the premises sold on tbe 15th. of August, 1867. The advertisement was dated, and publication commenced, the 22nd of June previous. G-retman, the mortgagor, was then insane, and had been continuously so for nearly three years. He was taken insane, according to the witness Treleven, in October, 1864 He had been an inmate, confined as an insane person, in the poorhouse of Fond du Lac county from the 11th of November, 1865. The mortgaged premises were situate in Fond du Lac county, where Gretman resided and had continued to reside from about the year 1860, part of the time perhaps upon, and always, until he was taken insane, in the vicinity of, the mortgaged premises. His ownership of the land and the fact of his insanity appear to have been well known in the neighborhood. The plaintiff in this case, who claims title by virtue of the sale, lived in the same county, and was apprised of Gretman’s insanity a considerable time before he purchased. He was informed of it by the witness Sheridan, in the month of March or April, 1867, when Sheridan employed him to find out the mortgagee and set in motion the proceedings by which the mortgage was foreclosed. The premises were bid off by the mortgagee at the sale, and on the same day transferred to the plaintiff, who took an assignment of the certificate of sale from the mortgagee and also an agreement from him to refund the purchase money, or so much of it as should not be realized from the redemption, in case the land should be at any time redeemed within the time provided by la.w. The mortgagee did not reside in the county of Fond du Lac, but in the adjoining county of Sheboygan, and claims to have been ignorant of the mortgagor’s insanity. The circumstances of the case are such as to create great doubt of the truth of this statement, although the mortgagee so testifies. He had been well acquainted with Gretman for years. Gretman had lived with him, and worked upon his farm, for three years
Upon these facts tbe question arising is, whether tbe effect of tbe statute authorizing tbe foreclosure by advertisement can be avoided, and tbe sale set aside and title restored on tbe ground of fraud. We are of opinion tbat the effect of tbe statute can be
We need not advert to tbe general principle tbat fraud vitiates all contracts and proceedings, even records and judgments of tbe most solemn character. Nor need we enter into any argument to show tbat proceedings, however sufficient and correct in form, which are taken for tbe clearly ascertained purpose of despoiling an insane person or lunatic of bis property and estate, are fraudulent. No one will deny tbat such proceedings are against conscience, and wrong. “ Such persons,” says Judge Stoéy, “ being incapable in point of capacity to enter into any contract, or to do any valid act, every person dealing with them, knowing their incapacity, is deemed to perpetrate a meditated fraud upon them and their rights. And, surely, if there be a single case in which all tbe ingredients proper to constitute a genuine fraud are to be found, it must be a case where such unfortunate persons are tbe victims of tbe cunning, the avarice, and corrupt influence of those who would make an inhuman profit of their calamities. Even courts of law now lend an indulgent ear to cases of defense against contracts of this nature, and, if fraud is made out, will declare them invalid.” 1 Story’s Eq. Jur., § 227. It is true, tbe learned author was speaking more especially of contracts, but what be says is also to tbe purpose here. It shows that tbe true and only ground upon which courts of law as well as equity interfere to protect and'restore tbe property of insane persons, and such as are otherwise non compotes mentis, is fraud. And it shows furthermore, tbat any person, who, knowing tbe incapacity of parties so situated, takes unjust or improper advantage of it, is deemed in tbe law to perpetrate a meditated fraud. If, therefore, tbe mortgagee in this case knew Gretman’s insanity, as we are compelled to believe, and, instead of foreclosing by suit in equity, where a guardian would be appointed and tbe mort
There is, for example, very much and very high authority for saying that the bar of the statute of limitations may be avoided at law for fraud in the party seeking to take advantage of it. Sherwood v. Sutton, 5 Mason, 143; Bree v. Holbeck, Doug. R. 655; Jones v. Carroway, 4 Yeates, 109; Persons v. Jones, 12 Ga., 371; First Massachussetts Turnpike Co. v. Field, 3 Mass., 201; Homer v. Fish, 1 Pick., 435; Welles v. Fish, 3 Pick, 73; Farnam v. Brooks, 9 Pick., 212, 246; Bishop v. Little, 3 Greenl., 405; Cole v. McGlathry, 9 Greenl., 131; Brickner v. Lightner’s Ex'r, 40 Pa. St., 199; Bicknell v. Gough, 3 Atkyns, 557; Carlisle v. Foster, 10 Ohio St., 198, Conyers v. Kenans and Hand, 4 Ga., 308. How does the question of avoiding the effect of the statute under consideration for actual fraud, differ from that of avoiding the effect of the statute of limitations for the same cause ? It seems to us there can be no difference.
The proposition that recoveries or proceedings of any kind, even upon just title or lawful claim or demand, may be falsified and set aside for fraud, or as it is termed in the old books, for covin, is by no means a new or strange one. “ In civil suits,” says Sir ¥i. De Ghey, Chief Justice of the Common Pleas, delivering the unanimous opinion of all the judges in the
It clearly appears to us, that (if a case can be presented where covin in law or fraud upon legal process should suffocate the right or nullify a recovery or title obtained, or where, as expressed by Lord Coee (Thomas’ Coke, 591) “ the wrongful manner shall avoid the matter that is lawful,” this is such an one. It seems to us that it should be so at law as well as in equity; but, as we have already observed, whether it is so at law or not, it clearly is in equity.
In equity the proceeding was fraudulent, and the sale will be set aside, whether the mortgagee knew of the morgagor’s insanity or not. This will always be done where it is for the benefit of the person non compos mentis, and where injustice will not thereby be done to the other parties to the transaction, or they can be placed in statu quo. No injustice will be done here. The plaintiff will be entitled to the redemption money so far as that goes, and for the rest he has the bond or covenant of the mort
In equity tbe case seems to fall witbin tbe third kind of fraud enumerated by Lord Hardwioke in Chesterfield v. Janssen, 1 Leading Cases in Equity, [*472], namely, fraud wbicb may be presumed from tbe circumstances and condition of tbe parties, and wbicb goes farther than tbe rule of law, wbicb is, that it must be proved, not presumed. But it is wisely established in tbe court of chancery to prevent taking surreptitious advantage of tbe weakness or necessity of another; wbicb knowingly to do, is equally against conscience as to take advantage of bis ignorance. But see Smith’s Manual of Equity, Title “ Actual Eraud,” pp. 67-70.
Judge Story, in tbe work above referred to, and in tbe sections immediately following that quoted 'from, covers tbe whole ground of equity upon this subject. 1 Eq. Jur., §§ 228, 229. He says: “ But courts of equity deal with tbe subject upon tbe most enlightened principles, and watch with tbe most jealous care every attempt to deal with persons non compotes mentis. Whenever, from tbe nature of tbe transaction, there is not evidence of entire good faith (itberrimce ficlei), or tbe contract or other act is not seen to be just in itself, or for tbe benefit of these persons, courts of equity will set it aside, or make it subservient to their just rights and interests. Where, indeed, a contract is entered into with good faith, and is for the benefit of such persons, such as for necessaries, there courts of equity will uphold it, as well as courts of law. And so, if a purchase is made in good faith, without any knowledge of the incapacity, and no advantage has hem taken of the party, courts of equity will not interfere to set aside the contract, if injustice will thereby be done to the other side, and the parties cannot he placed in statu quo, or in tbe state in which they were before the purchase.”
“ And not only may contracts and deeds of a person non
It follows from these views that the court below should have granted the relief asked by the defendant in Ms answer. The foreclosure proceedings and the sale should have been set aside, and the deed thereupon executed canceled, or the title adjudged to be in the defendant as administrator of the estate of Gretman, subject to the lien or incumbrance for the amount found due upon the mortgage. It appears that the defendant was proceeding to sell the premises under the license and order of the probate court, when the plaintiff commenced this action to restrain Mm. It also appears that the land in question was all the estate or property of wMch Gretman, the mortgagor, died seized or possessed, and, consequently, that the defendant has no funds jn his hands belonging to the estate with wMch to redeem from the mortgage. Under these circumstances, the proper course would probably be for the circuit court to direct a sale of the mortgaged premises in this action, and that the administrator pay over to the plaintiff, out of the proceeds, the sum due upon the mortgage when the same shall be ascertained. And to this end it may become necessary that investigation be had as to the amount due upon the mortgage, and the fact determined whether any payment or payments have been made. And an account
By the Court. — Judgment reversed, and cause remanded for further proceedings according to law.