Meehan v. Blodgett

86 Wis. 511 | Wis. | 1893

Pinney, J.

1. The statute in relation to sales on judgments of foreclosure provides that “ no sale shall be made until the expiration of one je&vfrom the date of such judgment or order of sale.” [E. S. sec. 3162.] In this case the judgment had been drawn up and signed and the costs had been taxed and entered therein; and, although it was dated and filed December 4,1889, the contention is that, as it had not then been actually copied or extended upon the record, it was not a completed judgment, and that the date of the entry of the judgment is the time when it is so recorded or extended on the record. The recording of the judgment after its rendition is the mere ministerial act of the clerk. All that involved the exercise of judicial power had taken place when the judgment had been signed by the judge and-filed with the clerk. The costs having been taxed, the sum necessary to redeem the premises and prevent a sale had been finally adjusted and .declared. The object of the statute was to secure to the party entitled to redeem an entire year to do so after the amount necessary to be paid for that purpose had been ascertained and definitely declared by the judgment of the court. ¥e are clearly of the opinion that the date of this judgment was December 4, 1889, when it was signed and filed. Whether it should be operative and carried into effect was in no proper or legal sense dependent upon any subsequent act or omission of the clerk. His' failure or refusal to record it could not prevent its operation.

An inadvertent and casual expression in the case of Andrews v. Welch, 47 Wis. 132, is relied oh as sustaining the defendant’s contention. This precise question was not involved in that case. In that case the costs had not been taxed and inserted in the judgment one year before the sale, and it was held that, “ in view of the object of the .statute, . . ' . the year does not commence to run against a party entitled to redeem the mortgaged premises until the judgment is perfected by the insertion therein of the amount of the costs of the plaintiff,” for the reason that until then the party entitled to redeem has no means of knowing what amount he must pay to the plaintiff or clerk for that purpose; and it was said that “ there is no hardship or inconvenience in requiring the plaintiff in a foreclosure action to perfect his judgment by the taxation and insertion of the costs in the judgment, in order to bar the mortgagor or his assigns from redeeming the same under sec. 8165, R. S.” It is manifest, from a careful leading of the opinion of the court in that case, that, had the costs been taxed and inserted in the judgment, the order of the circuit court would not have been reversed.

It has never been held by this court that an appeal would not lie from a judgment signed and filed and in which the costs as taxed had been inserted. Oases in which it has been ruled that until the judgment is actually rendered and entered and the costs are taxed and 'inserted therein, an appeal therefrom cannot be taken, and that the time within which an appeal may be taken does not begin to run until then, have -no bearing upon the question under consideration. When the costs have been taxed and inserted in the judgment, and it has been filed with the clerk, it is complete for all the purposes of this.statute. It is a completed judgment, within the meaning of the law, although not recorded.

2. While we think that upon a fair construction of the record the sale was set aside solely upon the ground that the judgment was not complete until actually recorded, and that it took its date from that time, and not because of inadequacy of consideration, yet, as counsel maintain different positions in this respect, and the record is not entirely clear, we have thought it right to consider the question of adequacy of consideration, although it is-evident that the motion was made upon the ground already considered, and that the question of adequacy of consideration was not distinctly presented in the motion papers. There is not the least evidence of fraud or any unfair practice on the part of the plaintiff or his attorney, or of the officer who conducted the sale, or that the defendant was in any way misled or surprised by anything that they or either of them said or did. It is the settled practice of courts of equity in this country to refuse a resale for mere inadequacy of price, and the court is not at liberty to depart from this rule where no other cause exists. Strong v. Catton, 1 Wis. 471, 496. Ho other ground, save mere inadequacy of consideration, is suggested. It is not denied that the defendant knew that the sale was about to take place, and the plaintiff deposes that he had often solicited the defendant to redeem. The evidence on the question of value took a wide range, and was very general, tending to show that the land may have had a speculative value in the estimation of some and not in the estimation of others. The defendant had full knowledge of the facts upon which he now claims the sale was premature and should have been set aside, for more than two years before he made his motion. He has slumbered on his rights for a longer period than the law allows for the taking of an appeal from a final judgment. The plaintiff has had possession of the premises in the mean time, and no excuse whatever is shown for the extraordinary delay in making this motion. It appears that the value of the property has recently materially increased by reason of important improvements near it, and it is not unlikely that after the sale was made the defendant was quite willing to shape his action by the course of future events in that respect. We think that he was guilty of such laches as to deprive him of the right to make this motion on the ground of inadequacy of consideration.

Ho sufficient ground was shown, for setting aside the sale, and the order appealed from must therefore be reversed, and the cause remanded for further proceedings according to law.

By the Court.— It is ordered accordingly.