Radke v. M. Winter Lumber Co.

| Wis. | May 13, 1902

BaRdeen, J.

Plaintiff has no right to have the deed on the lien foreclosure sale set aside, unless it clearly appears that he was deceived and misled by the acts of the defendant lumber company. The fact that the plaintiff was advised and believed that the lien judgment was invalid can have no significance, as it is not shown that the officials of the lumber company had any knowledge of that fact. The plaintiff was guilty of the grossest laches. The lien judgment was obtained in May, 1897, after a contest. His attorney testifies that he advised him the lien was invalid because he did not suppose or know that plaintiff had a dollar’s worth of interest in the property upon which the lien was claimed. If that was a fact, of course there was nothing to which the lien might attach. At that time plaintiff had a land contract with the •owner, upon which payments had been made. Presumably ■the plaintiff failed -to inform his attorney of the true situation. He waited nearly two years after judgment before •doing anything. He then approached defendant with a proposition to pay a portion of the judgment. His testimony regarding the talk with Mr. Winter is brief, and is as follows:

“I told him under the circumstances that I hadn’t ought to be compelled to pay the costs and interest up to date, and Mr. Winter answered me in this way: that he couldn’t do anything himself; he would see the company, and let me know.” “I made him several propositions, and he said he •couldn’t do anything, except everything in full, until he saw the company. That is what he said to me, and he would write me and notify me what the company would do.” “The last word I said to Winter was on the 15th of Eebruary. I •says, ‘Arthur, don’t make any more costs; whatever you do, let me know.’ He said he would.”

He testified, further, that he received no word from the company. Mr. Winter expressly denied that he was to take the proposition under advisement. He informed plaintiff that he would not accept anything less than the face of the claim and interest, and that if the stockholders of the company felt disposed to give him anything he would let him know. On the same day he wrote plaintiff a letter. The sale took place on March 20, 1899. On March 29th personal notice of motion to confirm the sale was served on plaintiff’s .attorney, and on April 29th the sale was duly confirmed. In •the meantime plaintiff did not exercise the slightest vigilance. Apparently he was resting secure in the belief that the lien judgment was invalid. As we have already seen, his belief in that regard was founded upon his failure to inform his .attorney of the real status of his title. His attorney failed to notify him of the application to confirm the sale because he did not suppose plaintiff had any interest in the property. 'The notice to his attorney was notice to him. More than a month elapsed after tbe sale before it was confirmed. Tbe sale was duly advertised,, proper notice of tbe several steps given, and ample opportunity offered for plaintiff to protect bis rights. Tbe trial court found that tbe various proceedings were regularly taken, and then declared that tbe company violated its agreement that no further costs should be made and no further steps taken by it until it should give plaintiff information whether it would accept less than the amount due on the judgment in satisfaction. The difficulty with this finding is that the evidence entirely fails to support it. There is absolutely no evidence in the case of an agreement to delay proceedings on the judgment. Admitting all that plaintiff says as to the conversation with Mr. Winter to be true, it fails entirely to sustain the finding. If the plaintiff has suffered loss or sustained a hardship, he has only himself to blame. In absence of any evidence showing that he has been misled, deceived, or overreached by the defendant, he is not entitled to relief. We find no such evidence in the record, and must therefore reverse the judgment.

By the Court. — The judgment is reversed, and the cause is remanded with directions to enter judgment for the defendants dismissing the complaint.