Pierce v. Kneeland
7 Wis. 224
Wis.
1859
Check Treatment

Lead Opinion

By the Court,

Cole, J.

We entertain no doubt but that, under section 248 of the code, in order to stay proceedings, on appeal from a judgment for the sale of mortgaged premises, and for the payment of the deficiency arising upon the sale, the appellant must give an undertaking in such sum as the judge of the court shall order, conditioned, or to the effect that during the possession of the mortgaged property by him, he will not commit or suffer any waste thereon ; and that if the judgment be affirmed he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of the possession of the property, and also further conditioned for the payment of any deficiency arising upon the sale of the mortgaged premises. This is the construction which in our opinion must be given to the above quoted section of the code.

It is admitted that such an undertaking was not given by the respondents on the appeal taken by them, and therefore we think the execution of the judgment of foreclosure and sale was not stayed by the appeal, which they made.

It was decided by this court in the case of Cushing et al. vs. Hungerford, on an application for a writ of prohibition to restrain the circuit court of Rock county from proceeding to a hearing and final decree in that cause while an appeal was pending in this court from an interlocutory order of that court refusing to strike out or suppress certain testimony taken therein, that an appeal did not necessarily operate as a stay of proceedings in the action in the court below, except as to the matters appealed from. As to the effect of an appeal in proceedings in chancery, see the following cases: Messioner vs. Kaumer, 3 J. Ch. R. 65; Burke vs. Brown, 15 *229Ves. Jr., 183; Nillon vs. Nillon, 16 id. 216; Monkhouse vs. The Corporation of Bedford, 17 id. 380; May vs. Foy, 18 id. 452. Before the adoption of the code an appeal from a decree of foreclosure and sale of mortgaged premises would probably necessarily operate as a stay, since the whole case would be removed to the appellate court. But the code changes the practice in this respect, providing as it does, in effect, that proceedings under such a decree or judgment shall not be stayed unless an undertaking is given as therein prescribed. It is said that it is entirely unreasonable and unnecessary for the appellant to give an undertaking conditioned otherwise than to pay any deficiency which might arise on the sale of the mortgaged premises as such an undertaking makes the mortgagee amply secure. This may be all very true; but still if the legislature has provided by law that a stay shall not take place in the proceedings unless a certain undertaking is given, it only remains for a party desiring to prevent the execution of a judgment, to take the necessary legal steps for that purpose. In the present case we were given to understand that the circuit court denied the motion to confirm the sale on the ground' that in order to stay proceedings on appeal in foreclosure cases, it was only necessary to give an undertaking for the payment of the deficiency. In this the circuit court was in an error, and the order overruling the motion to confirm is reversed.





Concurrence in Part

Smith, J.

While I am willing to admit that the undertaking in this case was insufficient to stay the proceedings, I am by no means willing that this case shall go back to the circuit court with even a seeming of approbation of the motion to confirm the sale. I do not intend to review, nor does the occasion justify me in a review of the cases upon this branch of the case. But here is a case where, on behalf of a mort*230gagee complaining against his mortgagors, a court of equity is asked, on account of the default of payment by the mortgagor, to take possession of such mortgaged property and sell it., on the most equitable terms, to satisfy the debt for which it was mortgaged.

By virtue of the high authority conferred on that court, it became the sovereign trustee of the parties, (sovereign, it is true, but not the less answerable to the claims of equity and good conscience,) and by well established rules was required to dispose of the property for the best advantage of all the parties interested therein.

From the time of the decree and order of sale, the court assumed the control of the property; became the equitable vendor thereof, for the just use and benefit of all the parties within the jurisdiction. Can such a sovereign, equitable vendor eschew the demands of equity on account of some one or more alleged delinquences of its ministerial agents'?

When from necessity, resulting from disappointment or misfortune, I am compelled to subject the disposal or sale of my property to the trust and management of my State, in which it is supposed is concentrated the highest degree of equity and good conscience, I have a right to demand that such property shall be administered or disposed of according to the strictest rule of equity.

I have made these remarks in reference to the manner in which this sale was made by the court, (for it is the court which makes the sale) and the price bidden for the property in comparison to its admitted value.

I do not intend, on this occasion, to enter into a review of, or indeed, to examine the authorities cited in relation to inadequacy of price upon foreclosure sales. This court has heretofore expressed its opinion on that subject. While I am constrained to believe, upon a careful review of all the New York cases on that subject, that inadequacy of. price did in fact *231constitute the real ground of setting aside the sale, I ana relieved from such criticism of the several cases, by the fact that in this case the inadequacy was so great, so gross, so enormous, coupled with the fact that the complainant only was present and bidding at the sale, and am justified in holding,and in conscience required to hold this sale to be unworthy of confirmation. Indeed I do not understand my brethren to hold that this sale should be confirmed ; but only that the undertaking filed for the appeal was not sufficient to stay proceedings. In this I fully concur. But lest it may be supposed that this court approved the sale, and ordered its confirmation, I have felt it my duty to make the remarks I have, relative to the merits of the case on the matter of confirmation.

As to the matter of practice on the appeal, and the sufficiency of the undertaking to stay proceeding, I understand the court to be unanimous ; but beyond that I do not understand that the court has adjudicated in this case. If so, as to all matters aside from the question of practice, I must and do respectfully dissent.