225 Wis. 574 | Wis. | 1937
This action was begun November 5, 1932. On November 21, 1932, the court entered an order appointing a receiver. This was done on stipulation of the parties. Defendant did not contest the action, and on January 6, 1933, the finding's of fact, conclusions of law, and judgment were entered. Notice of entry of the judgment was personally served upon defendant January 26, 1933. Judgment was for the sum of $7,545.03. It directed the sheriff of Milwaukee county to sell the premises in question at any time after one year from date, unless the time of sale be extended in accordance with chs. 24 and 29, Laws of Sp. Sess. 1931-32, and unless, previous to the sale, the judgment be paid. Ch. 24, Laws of Sp. Sess. 1931-32, provides that in actions commenced prior to January 1, 1934, in which judgment of foreclosure and sale has not been entered at the time this act takes effect, the one-year period specified in sec. 278.10 and in sec. 297.11, Stats., shall be extended an additional year, but in no event beyond Ja/miary 1, 1935, provided the person entitled to redeem shall before the ex
On December 21, 1933, defendant’s attorney served notice of appearance, demanding that a copy of all pleadings subsequent to the notice of entry of judgment be served upon him. On May 11, 1935, plaintiff’s attorney gave notice of motion to set the time and place of sale. The notice specified June 7, 1935, as the date for hearing. On June 5, 1935, on defendant’s application, an order to' show cause was entered directing that plaintiff show cause on June 7, 1935, why defendant should not be granted an additional redemption period of one year from date. On June 7th, the plaintiff’s motion to set the time and place of sale, and the defendant’s motion on the order to show cause for additional redemption period for one year, were heard before Judge Aarons. The court ordered that the premises be sold 'as above indicated on October 30, 1935. The sale was accordingly had, and the sheriff’s report of sale shows that on October 30, 1935, he sold the premises to the plaintiff for the
It will be noted that the order in question was entered three years eleven months and twenty-two days' from the date of the judgment. The- redemption period provided for in chs. 24 and 29, Laws of Sp. Sess. 1931-32, are the same as to the redemption period and differ only as to conditions imposed upon the person entitled to redeem. That is, ch. 24, Laws of Sp. Sess. 1931-32, provides “the one-year period specified in sec. 278.10 and in sec. 297.11 of the statutes shall be extended an additional year” provided the person entitled to redeem the mortgaged premises shall before the expiration of such one-year period present' to the court satisfactory evidence that he has paid all insurance premiums as
Ch. 11, Laws of 1933, effective February 15, 1933, created several new sections of the statutes. Sec. 278.103, relating to deferred sale in case of an existing judgment and relating to the application for an order directing the time and place of sale and hearing thereon, provides :
“. . . And upon the hearing of such application the court shall make full inquiry in regard to and upon all the facts and circumstances of the case, and may direct by order that no foreclosure sale shall be made until the expiration of a reasonable period not exceeding two years beyond the one-year period in section 278.10. ...”
The order entered April 30, 1936, nunc pro tunc, as of December 30, 1935, extending the period of redemption to December 1, 1936, gave defendant a redemption period of three years and approximately eleven months. However, no appeal was taken from that order. But, the order, in any event, terminated the period of redemption as of December 1, 1936. The order appealed from extending the period of redemption to December 1, 1937, was entered on December 28, 1936. Sec. 281.209, Stats. 1935, cannot be invoked
The respondent relies entirely on sub. (2) of sec. 278.105 and sec. 281.206, Stats. 1935. Sub. (2) of sec. 278.105 provides:
“In case the mortgaged premises sell for less than the amount due and to become due on the mortgage debt and costs of sale, there shall be no presumption that such premises sold for their fair value and no sale shall be confirmed, and judgment for deficiency rendered, until the court is satisfied that the fair value of the premises sold has been credited on the mortgage debt, interest and costs.”
Sec. 281.206 provides:
“. . . Before granting an order confirming said sale, the court shall, if it appears upon due examination that the sale price is unreasonably and unfairly inadequate, or that justice has otherwise not been done, order a resale or make such further order as may be just and equitable. Upon the hearing of the motion for an order confirming the sale of the premises involved in the foreclosure of such mortgages by action, in case the evidence is insufficient to establish a fair and reasonable market or rental value of such property, the court shall receive any competent' evidence, including evidence tending to establish the actual value of the property involved in said mortgage foreclosure proceedings, for the purpose, or purposes, for which said property is or can be used. The court shall also receive any evidence tending to show to what extent, if any, the property has decreased in actual or market value by reason of the economic conditions existing at the time of or prior to such sale. ...”
In the order denying plaintiff’s motion for confirmation of sale, the court finds:
“That the bid of $7,300 made at the sheriff’s sale is inadequate and is not a fair price or bid for said premises. That the fair value of said premises is and was at the time of the sale $9,200.”
Amount of judgment.$7,545.03
Interest on same for 3 yrs. 11)4 mos. 1,791.94
$9,336.97
Total credits.$715.19
715.19
Balance due plaintiff.$8,621.78
Thus, the value of tire property in question, as fixed by the mediation board, is only $178.22 in excess of the amount due plaintiff at that time.
At the time the order appealed from was entered, respondent had had within a few days of four years’ time within which she might have. redeemed her property. There is a complete lack of any showing on her part, of the remotest possibility that she would ever be able to make redemption. If the trial court had followed the procedure as indicated by this court in Suring State Bank v. Giese, 210 Wis. 489, 246 N. W. 556, the rights and equities of both parties would have been protected. It has been repeatedly held by this court that mere inadequacy of consideration will not justify the court in refusing to confirm the sale. Griswold v. Barden, 146 Wis. 35, 130 N. W. 952; In the situation here presented, defendant having had four years’ time within which to redeem, it was a clear abuse of discretion to grant her an additional period of one year and deny plaintiff’s motion for confirmation. If the plaintiff’s bid was so inade
By the Court. — Order appealed from reversed, and cause remanded with directions to enter an order confirming .the sheriff’s report of sale and sale.