Warren v. Foreman

19 Wis. 35 | Wis. | 1865

By the Court,

Dixon, C. J.

This is] a case of conflicting equities, and it is somewhat difficult, perhaps, to determine how. they should have been settled, and what shpuld have been the order of sale, in case the appellant had appeared and answered. The appellant shows no special equity to have had the land covered by the Bostwick mortgage sold first; and I think he shows no other sufficient ground for vacating the judgment or setting aside-the sale. It is not enough that the judgment may be technically irregular. It may be*that it should have directed the sale of the land covered by the Bost-wick mortgage separately to'satisfy that mortgage, and subject to the lien of the mortgage to Warren, and then the sale of the whole or so much as might be necessary to satisfy the latter; or that the whole should have been sold upon the latter, and the surplus, if any, applied in satisfaction of the former. But however this may be, appeals in equity ought not to be entertained to correct mere irregularities in practice not affecting substantial rights or operating injuriously to the party appealing.' Judgments will not be vacated or sales opened upon such grounds alone, if in the end the new proceedings come to the same thing.' R. S., ch. 125, sec. 40. The appellant shows no special equity as against the land mortgaged to Bostwick. He does not show whether his interest in the other quarter section was acquired before or after Bostwick’s mortgage was executed. ■ If before, then he had an absolute equity to have the quarter section mortgaged to Bostwick sold first to satisfy the Warren mortgage, even to the total exclusion of Bostwick’s lien. If, however, he did not acquire his title until after the execution of the mortgage to Bostwick, then Bostwick had a paramount right to have the other quarter section first sold to satisfy the mortgage to Warren. Assuming, as we must in the absence of any proof to the contrary, that such was Bostwick’s equitable right — that his mortgage was executed before the conveyance to the appellant — that right, I apprehend, was not lost by the assignment of the mortgage to Warren; and it neutralizes, in some measure, tbe equity of the appellant as between himself and Moseley, to have that part of the premises still owned by the latter, to wit, that mortgaged to Bostwick, first sold. It rids the case of considerations of special equities growing out of the order of time in which the different portions were incumbered and sold after the execution of the first mortgage to Warren, and leaves the appellant to stand upon his general equity to have the quarter section mortgaged to Bostwick and still owned by Moseley first offered and sold, if of sufficient value to satisfy both mortgages. This, I think, would have been his general equitable right had he appeared and insisted upon it; and the question is, whether he shows that he has been injured or lost anything by its not having been allowed to him. I think he does not. He proves upon his own unaide$. affidavit; and as to the value of the premises he says that “ he is informed and believes that the mortgaged premises, exclusive of that portion thereof claimed by deponent, are of sufficient actual and intrinsic value to more than cover the whole amount of the plaintiff’s claim in this action.” This is all that is contained in the affidavit upon the subject of the value, and seems to me wholly insufficient to authorize the opening of the judgment or the ordering of a resale. In the first place, the statement is made upon information and belief. The appellant professes to have no positive knowledge of the situation or value of the premises. He says nothing about the value of that portion claimed by himself, whether it is of any value at all. Affidavits of value, where a resale is asked on the ground of inadequacy of price, should be full and explicit, and should be. by persons actually acquainted with the premises and their value, and in general, I think, the witnesses should be disinterested. But more than this, the appellant does not offer to redeem the mortgages or either of them, or to advance anything beyond the amount of the former bid for the whole premises. He does not show that any other person offers, or is likely even to offer a reasonable advance upon such bid. Neither does he indemnify or offer to indemnify the plaintiff for any deficiency or loss or expense which may accrue to him in consequence of a second sale. I feel very confident, under these circumstances, that the biddings ought not to be opened or the judgment disturbed. ' There is no certainty whatever that it would not result in a sale of the whole premises for a price not greater than that for which they have been already struck off. See Duncan v. Dodd, 2 Paige, 99.

Order and judgment affirmed.