Howe v. English

6 Wis. 262 | Wis. | 1858

£y the Court,

Cole, J.

This was a bill filed to foreclose a mortgage upon /which an installment of the principal sum secured by the mortgage, with interest, had become due, and remained unpaid, and other installments were to become due subsequently. The decree states that the sum of $564.48 was then due and unpaid, and that the whole amount secured by the mortgage and unpaid was $1321.15. The referee to whom the matter was referred, reported that the mortgaged premises were so situated that they could not, without injury to the parties interested, be sold in parcels, and the decree or judgment of the court was, that all the mortgaged premises be sold, or so much thereof as might be necessary to raise the amount secured by the mortgage, to-wit, the sum of $1321.15. The judgment for the sale of the mortgaged premises was peremptory and absolute, and omitted to provide, that if, previous to such sale, the defendant should pay the complainant, or bring into court the amount reported as actually due upon the mortgage, and interest, and costs, that then the proceedings in the cause should be stayed. The 87th section of chap, 84, R. S., provides, in cases of this nature, that if after a decree for sale of the premises is entered, the defendant bring into court the principal and interest due, with the costs, the proceedings in the suit shall be stayed; and the decree in the present case, instead of requiring an unconditional sale of the premises, should have contained a clause to this effect. The form of the decree given in 2 Barb. O. P., page 615, contains such a clause, and it seems very reasonable and proper that it should have been inserted in the decree in the case. Suppose the appellant had brought into court, or tendered to the sheriff before sale, the sum actually due upon the mortgage, with interest, and costs; would he have felt authorized, under this decree, to receive that sum and stop the sale ? Would the sheriff not have relied upon the mandate of the court, and proceeded with the sale, unless the whole sum secured by the mortgage had been paid? And yet it is most manifest that, by statute, the appellant was entitled to a stay in the proceedings upon paying, before sale, the sum actually due. interests, ánd costs. This is an insuperable objection to this decree, patent upon the face of it, and cannot be overlooked. We therefore think that the judgment of foreclosure must be reversed, upon this ground, and the cause remanded to the circuit for further proceedings according t;o law.