65 Wis. 261 | Wis. | 1886
The plaintiff’s title to the land in controversy is founded upon a deed given on the foreclosure of a mortgage by advertisement under the statute. The mortgage contained a power of sale authorizing the mortgagee or his assigns, in case of default, to sell and convey the premises at public auction pursuant to the statute. A number of objections are taken to the notice of sale, all of which we deem untenable. The notice contains all that the
Another objection is that the mortgaged premises were not sold in government subdivisions. The plaintiff’s mortgage, by its terms, covered 160 acres, though it appears there was a prior mortgage on one forty which had been foreclosed. But the whole mortgaged premises constituted a farm, therefore they were properly sold together. Presumably this was to the advantage of all concerned. The statute sanctions such a sale where the premises consist of a distinct farm which had been used and cultivated together (sec. 3530, R. S.), and premises thus situated cannot be sold separately without a manifest injury to those interested in them.
It is further claimed that the sale was fraudulent because the notice was published in the Dodge County Citizen, a paper published at Beaver Dam, instead of being published in a paper at the city of Waupun, near to the premises where the defendant lived. It is not apparent that it would have been more generally known, or Avould have secured more bidders, had the notice of sale been published in a paper at Waupun l’ather than at Beaver Dam. Certainly there is nothing to show that the plaintiff did not act in the utmost good faith in causing the notice of sale to be pub-
The premises were bid in by Mr. Heath, it is said, for the plaintiff. Mr. Heath testified, in substance, that he bid them in for himself, and would have kept them if he had not been afraid of a lawsuit. But we assume that he really purchased them for the plaintiff. The statute allows the mortgagee, or his assigns, to purchase the premises at the sale, providing he acts fairly and in good faith in making the sale. Sec. 3531, E. S. As we have said, we see nothing in the circumstances which justifies the inference that the plaintiff did not proceed Avith “ the strictest good faith, and the utmost diligence, for the protection of the rights of his principal.” Montague v. Dawes, 14 Allen, 373.
The premises were sold for $3,131.50, and it is said that this was greatly below their value. A number of Avitnesses on the part of the defendant testified that the premises Avere worth $60 an acre at the time of sale, while about an equal number on the other side testified they were worth only $40 an acre. Property at forced sales is usually sold at a sacrifice, and doubtless that was the case here. But this fact alone does not impeach the fairness of the sale; and there is one circumstance which shoAvs beyond all controversy that there was nothing unfair in the transaction or
It is further insisted that the judgment should be reversed because the plaintiff was permitted to recover the rents and profits in this action. The complaint is in the usual form prescribed by sec. 30'T'T, R. S., that the plaintiff is entitled to the possession of the premises described; that the defendant is in possession of the said premises, and unlawfully withholds the possession thereof from the plaintiff, to his damage of $500. There is no claim for rents and profits. If such a claim was necessary,— a point we do not decide,— an amendment would have been allowed on the trial had the attention of the court been called to it. Evidence as to the rental value was given, and under the circumstances we think the objection comes too late that there could be no recovery of rents and profits. See sec. -3082, R. S.
By the Court.— The judgment of the county court is affirmed.