Hubbard v. Taylor

49 Wis. 68 | Wis. | 1880

Cole, J.

'Whether the defendants could have had the sale set aside on the motion made by the purchaser to confirm, is a question of no practical importance in this case. It is sufficient to say that they deemed it advisable to move themselves in the matter, and therefore they obtained and served an order upon him to show cause1 why the sale should not be set aside. Surely the purchaser has no reason to complain of this action on their part, even if it was unnecessary, and if they could have had the relief ashed by them on his motion to confirm. This is all we deem it necessary to say on the first point made in the brief of counsel for the appellant.

The sale in this case took place contrary to the express agreement and design of both plaintiff and defendants in the foreclosure action. The parties to the suit had a distinct understanding between themselves that the sale should be adjourned; consequently none of them were present when it took place. It appears that about two hours after the sale was made, the sheriff received a dispatch from the attorney of the plaintiff directing him to adjourn the sale for one week. Why the dispatch was not earlier sent is satisfactorily explained in the affidavit of Mr. Markham. But as the sale had already taken place when the dispatch was received, the sheriff deemed it his duty to proceed and execute and deliver to the purchaser a deed of. the mortgaged premises, which was accordingly done. That the defendants will be seriously injured if the sale is suffered to stand, is a fact conclusively established by the affidavits produced by them in support of their motion. The mortgaged premises consisted of a flouring mill and machinery therein, and the affidavits on both sides leave no room for doubt that the property was sold for much less than its real cash value. Besides, if it were not, presumably it would be a great loss to the defendants to have the sale confirmed. They were making efforts to pay the foreclosure judgment, and did actually pay $1,000 upon it the very day the sale took place. And as they had a fair understanding with the plaintiff that the sale should be postponed, and therefore did not attend to protect their interests, it would be against good conscience and equitjr to allow the sale to stand.

Even if the application to set the sale aside were resisted by the plaintiff in the action — as it is not, — still the circumstances present a clear case of surprise, calling for the intervention of the court. The grounds upon which courts of equity interfere in these cases are well settled, and need not be dwelt upon here. It is sufficient to say that the facts of this case bring it within the doctrine of numerous decisions made by this court, commencing with the early case of Strong v. Cotton, 1 Wis., 471, and ending with the recent case of Kemp v. Hein, 48 Wis., 32. See, also, note to Strong v. Cotton, V. & B.’s ed. The only party who objects to setting aside this sale is the purchaser; but, until the sale was confirmed, the whole matter was under the control of the court, and he must be deemed to bare purchased with knowledge of tbe fact that the sale was liable to be set aside for good cause shown. The order setting aside the sale amply protects his rights. The plaintiff refused to accept any of the money paid by him on his bid. Most of it remains with the clerk of the court. He has leave to withdraw this money, and the defendants are required to pay him sheriff’s fees, the interest on the amount bid by him, attorney’s fees, and the expenses he incurred in looking after and caring for the mill. In case the defendants fail to perform the conditions of the order within twenty days from its date, the sale stands confirmed. It will therefore be seen that no injustice was done him by the order. He was fully indemnified for all his trouble, costs and expenses about Ms purchase, by the liberal allowance made him in the order. This is all he can reasonably ask for in justice and equity. That a resale is not provided for in the order, is not a matter which concerns him.

By the Court.— The order of the circuit court is affirmed.