224 Wis. 634 | Wis. | 1937
The plaintiff contends that the court erred in denying its motion for a deficiency judgment in the sum of $2,882.34. Under the terms of the mortgage, the plaintiff was entitled to a deficiency judgment, in case the proceeds of sale on foreclosure were insufficient. The complaint prayed for such a judgment and the judgment entered so provided, but the court, upon motion to confirm, limited the amount thereof, apparently upon the ground that $18,500 represented the amount which it was satisfied the plaintiff should credit on the mortgage debt as the “fair value” of the premises, sec. 278.105 (2), Stats., and as a condition of having the report of sale immediately confirmed. Suring State Bank v. Giese, 210 Wis. 489, 246 N. W. 556, 85 A. L. R. 1477; Kremer v. Rule, 216 Wis. 331, 257 N. W. 166; Big Bay Realty Co. v. Rosenberg, 218 Wis. 318, 259 N. W. 735; Buel v. Austin, 219 Wis. 397, 263 N. W. 82; Weimer v. Uthus, 217 Wis. 56, 258 N. W. 358; Wahl v. H. W. & S. M. Tullgren, Inc., 222 Wis. 306, 267 N. W. 278. Both parties asked the court to determine the reasonable value of the premises. The court, after hearing, fixed the reasonable value thereof. Because, however, of a variance between the fair value or upset price orally expressed, by the court at the conclusion of the hearing, and the upset price written into the formal order
The precise question to be determined hinges on the further questions, whether the court confirmed the sale on condition that a deficiency judgment for only $782.34 might be entered, and whether the court gave to the plaintiff an option to reject the terms and conditions of confirmation. It was, of course, the plaintiff’s right, upon a conditional confirmation of the sale, to have an opportunity to accept or reject it upon the terms specified, and if rejected, to have a resale of the premises. Suring State Bank v. Giese, supra, and Wahl v. H. W. & S. M. Tullgren, Inc., supra. The court specifically stated that the “sale may be confirmed on the condition that the deficiency will be $782.34 and you may have deficiency judgment for that amount.” It appears therefore that the sale was conditionally confirmed and therefore the plaintiff was in effect given an option to accept or reject it. The plaintiff, not having rejected the conditional confirmation, but to all intents and purposes having accepted it by drawing an order confirming the sale, it must be held to have accepted it and to be bound by the terms imposed by the court in confirming the sale.
By the Court. — The parts of the order appealed from are affirmed.