Veit v. Meyer, 105 Wis. 530

Veit v. Meyer

105 Wis. 530 | Wis. | 1900

Bardeen, J.

The application to set aside the sale was addressed to the sound discretion of the court. Adams v. Haskell, 10 Wis. 123; Homestead L. Co. v. Joseph Schlitz B. Co. 94 Wis. 600. See Kemp v. Hein, 48 Wis. 32.

We see no reason for disturbing the court’s conclusion on the facts. If the court believed the statements of the petition and the accompanying affidavits, Heller was guilty of a gross breach of good faith, and the sale ought not to stand. When a sale has been concluded under circumstances that are unjust and inequitable to parties interested, a court of equity will not hesitate to seize it with a strong hand, and adjust the rights of the parties in accordance with the principles of equity and fair dealing. In so doing, however, the court must compel him who seeks equity to do equity. The condition imposed should be such as to fully protect the rights of the innocent, apd place the parties at least in as favorable a position as they were before the sale.

In this case the court made an order setting aside the sale absolutely. It directed an examination to ascertain “ the exact amount of money disbursed and received by said Minna Kigel in said matter,” and then directed the petitioners to pay the sum to the clerk of the court within five days. The sale was stayed until such deposit was made, and the sale, when made, was to be subject to the mortgage executed by appellant to Upham. No provision was made to protect her from her covenants in the mortgage or from *533her undertaking on the note. The plan adopted does not meet with our approval. In the first place, the order setting the sale aside should not have been absolute. It should have been made conditional and dependent upon full compliance with such conditions as the court might impose upon the parties seeking relief. The present order might have the effect to postpone the sale for an indefinite period. Obviously, it was for the interest of appellant to have the matter settled without delay. The court should have summarily ascertained the amount of the costs and expenses of the sale and the receipts and expenditures of the appellant, and the proper amount should have been inserted in the order as a condition for relief. The defendants should have been given a reasonable time to pay, and, in case of default, the sale should have been allowed to stand. Again, the order was improvident in not properly protecting appellant’s rights as against the Upham mortgage. A resale should not have been ordered except on condition that defendants file a proper undertaking, to be approved by the court, to save her harmless from any liability thereon. We suggest, also, the propriety of requiring the defendants to make some binding offer that in case of sale the amount of the judgment debt will be bid. Being in court asking favors, it would be no more than proper to require them either to make deposit or give satisfactory security that the offers made will be carried out at the resale. For these reasons the order appealed from is reversed, and the cause is remanded with directions to enter an order in accordance with the suggestions herein made.

By the Court.— So ordered.