36 Wis. 626 (Wis. 1875), Quaw v. Lameraux

Citation:36 Wis. 626
Opinion Judge:ORSAMUS COLE, J.
Party Name:QUAW v. LAMERAUX and others
Attorney:E. L. Browne, for appellants: G. L. Park, for respondent,
Court:Supreme Court of Wisconsin
 
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Page 626

36 Wis. 626 (Wis. 1875)

QUAW

v.

LAMERAUX and others

Supreme Court of Wisconsin

January, 1875

Page 627

[Syllabus Material]

Page 628

APPEAL from the Circuit Court for Marathon County.

Action to foreclose a mortgage. The mortgagor, John Stackhouse, died some time prior to the commencement of the suit, leaving a widow and several children. Personal service of the summons was made upon Dora Lameraux, one of the heirs of the mortgagor, but not upon any other defendant; and none of the defendants appeared in the action. Judgment of foreclosure was entered, and the premises sold in pursuance thereof by the sheriff. Before confirmation of the sale, but after the term at which judgment was taken, defendants moved the court to set aside the judgment, sale, report of sale, and all subsequent proceedings, and for leave to file and serve an answer to the complaint. This motion was founded upon the judgment roll, report of sale, and other files in the case, and upon certain affidavits and deeds served with the notice.

The mortgage, as appears from these papers, was upon the undivided one-half of a lot described as lot 2 in section 36, township 29 north, range 7 east, of which partition was afterward made by the mortgagor and his cotenants by mutual deeds of release, the former taking for his portion the south half of said lot, and one Joseph S. Snow the north half.

The affidavits tended to show, among other things, that the sale, which was of the undivided half of the whole lot, was made at a very inadequate price; also, that one Herman Miller had offered the sheriff, at the sale, a sum sufficient to satisfy the judgment and all costs and expenses, for the undivided one-half of the south half of said lot, which bid was refused. Said Miller also makes affidavit that if a resale is ordered he will bid a sum still larger than that offered by him at the sale, for the same interest.

The affidavit of Wm. Kelley, the purchaser at the foreclosure sale, showed that he had, since the confirmation of the sale (which was made during the pendency of the motion to vacate), conveyed away an undivided moiety of the land to some person not named.

The defendants' motion was denied in toto; and they appealed.

Judgment affirmed.

E. L. Browne, for appellants:

1. Miller's bid was equivalent to an offer by defendants to pay the whole mortgage debt without...

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