85 Wis. 90 | Wis. | 1893
The statute which gives the right to redeem mortgaged premises after judgment of foreclosure has been obtained is in the nature of an exemption law, and is founded upon the principle which underlies all exemption laws proper, to wit, the protection by the state, and in the interest of the state, of debtors from liability to absolute
In Maxwell v. Reed, 7 Wis. 582, this court held that a waiver of the benefit of exemption laws contained in an obligation to pay money, or in a warrant of attorney to enter up judgment thereon, is null and void, because against the policy of the law. That decision has stood unshaken — practically unchallenged — for more than one third of a century, and has frequently been cited and approved by this court in later cases. It establishes a principle in our jurisprudence which, in our opinion, is applicable to and governs this case, unless rendered inapplicable by some statute.
The only statute which it is claimed has that effect is sec. 3162, E. S. • That section relates to actions to foreclose mortgages. It postpones sales of mortgaged premises oh judgments of foreclosure to one year from and after the dates of the judgments or orders of sale, but provides that “ in all cases the parties may, by stipulation in writing to be filed with the clerk, consent to. an earlier sale.” Sec. 3165 gives the mortgagor, his heirs, etc., the right to redeem the mortgaged premises at any time before sale by paying the amount of the judgment, taxes, etc. Sec. 3167 gives a subsequent incumbrancer the right to pay such judgment at any time before sale, and to be subrogated to the rights of the plaintiff in the foreclosure action.
If it be assumed that the stipulation made by the attorney by virtue of the warrant of attorney contained in the mortgage, and filed with the clerk, was a valid consent by the mortgagor to an earlier sale,— that is, to a sale after ten days from the date of the judgment,— still the requirements of the statute are not thereby fulfilled. The statute requires the consent of the parties. This clearly means the parties to the action, especially subsequent mortgagees
Sec. 3162 is a revision of several former sections of the statutes, one of which is sec. 3, ch.143, Laws of 1877. By that section it was first enacted that the mortgaged premises should not be sold until one year from the date of the judgment, “ unless all the parties to the action consent to an earlier sale.” The revised section provides how such consent shall be evidenced; that is, by stipulation of the parties, in writing, to be filed with the clerk. True, it drops the words “ to the action,” found in the original section, but it seems quite apparent that these words were omitted as unnecessary, not to change the meaning and effect of the original section. Had the revisers intended so to change the section that the word “ parties ” should mean parties to the mortgage instead of to the action, they would doubtless have changed the phraseology of the section to express that intention, or at least would have stated such intention in their notes. They did neither. The conclusion is irresistible that they did not intend to make any change in the law as expressed in the act of 1877, in the particular under consideration.
We conclude, therefore, that the consent of the defendant Earles, at least, must be obtained before a sale of the mortgaged premises within a year after date of judgment can be upheld. We do not determine whether such consent has been given by the mortgagor, or whether the consent of the other defendants, who are made parties merely because they are officers of the mortgagor, is essential.
By the Court. — The judgment of the superior court is affirmed.