21 Wis. 531 | Wis. | 1867
An execution sale of land in disregard of the law which requires it to be offered in separate parcels, is not void, but only voidable at the instance of the party aggrieved. The remedy is, to apply within a reasonable time, and have the sale set aside on that ground. Bunker v. Rand, 19 Wis., 258. Undoubtedly a reasonable time must be some time within the period fixed by law for a redemption. If that period is allowed to expire, and a deed to be executed, the application cannot afterwards be made, unless under special circumstances of fraud or mistake, showing some reasonable excuse for the delay ; and then it must be made to a court of equity. But it is very doubtful whether a subsequent mortgagee of a part or the whole of the premises can at any time make the application. How can he be said to be prejudiced by such an irregularity in the sale? If he-wishes to redeem from the judgment before sale on execution, he can do so only by paying the whole judgment. The same is true in case he redeems after the execution sale. His rights, therefore, are the same after the sale as before, except, perhaps, that he might, in certain cases be liable to lose the costs of the sale. If he should redeem within two years from the time of the sale (as I think he must do, except in cases of fraud or evident mistake excusing the delay), and the judgment debtor or owner of the land should, afterwards, and before the expiration of two years, apply to the court from which the execution issued, and cause the sale to be set aside, the costs of the sale might be lost. But as a mortgagee has no legal right of redemption under the statute (R. S., ch. 134, secs. 55, 60), but must, in the proper case, apply to a court of equity upon his equitable right, this
By the Court. — Judgment reversed, and cause remanded for further proceedings according to law.