Kremer v. Rudolph

• Court: Wisconsin Supreme Court
• Writing for the Court: DODGE
• Citation: Kremer v. Rudolph, 105 Wis. 534, 81 N.W. 654 (Wis. 1900)
• Decision Date: 02 February 1900
• Parties: KREMER ET AL. v. RUDOLPH ET AL. (THWAITS ET AL., INTERVENERS).

105 Wis. 534

81 N.W. 654

KREMER ET AL.

v.RUDOLPH ET AL. (THWAITS ET AL., INTERVENERS).

Supreme Court of Wisconsin.

Feb. 2, 1900.

Appeal from superior court, Milwaukee county; John C. Ludwig, Judge.

Action by John Kremer and others against R. L. Rudolph and others for foreclosure of a mortgage. Judgment was rendered for plaintiffs, under which the property mortgaged was sold to Charles H. Thwaits and another, who intervened and objected to confirmation of the sale. From an order denying confirmation, plaintiffs appeal. Affirmed.

A judgment having been recovered in this action for foreclosure of a mortgage which contained a covenant of clear fee-simple title in the mortgagors and a warranty against all claims, a copy of that mortgage being attached to the complaint, and there being no suggestion in either the complaint, finding, judgment, or notice of sale of any prior incumbrance, the mortgaged property, situated in the city of Milwaukee, was offered for sale by the sheriff. The interveners, Charles H. and Fred. C. Thwaits, after examination of the judgment and record on which it was founded, bid off said property at the sum of $8,301, and paid the money to the sheriff, on the understanding, induced by the state of the record in said case and the manner of sale, that they were purchasing a full and complete title thereto. Shortly after such payment, they discovered that in fact there existed a prior mortgage on the same property of $5,000, with some $600 of accrued interest. Upon the plaintiffs moving to confirm said sale and orderthe proceeds paid over to them upon the judgment, which, with costs and tax liens on the property, exceeded the amount of the bid, the petitioners intervened by petition, and prayed originally that the property might be cleared from the liens out of the money paid on the sale, predicating such prayer upon an assumption that the premises themselves were offered for sale and bid upon, and not the mere equity therein. The plaintiffs resisting this petition, the interveners were permitted, by a so-called “reply,” to pray in the alternative that the sale be set aside, they relieved from their bid, and the amount paid by them be returned, for the reason that they had bid under a misapprehension and misunderstanding. After considering much evidence by affidavits, which included, among other considerations, the value of the property, supplemented by his own inspection thereof, the court found the facts substantially as above stated; also that the interveners had made their bid and paid their money under an honest and genuine mistake, in some measure induced by the foreclosure and sale proceedings, and that the property was worth considerably less than the amount of their bid, together with the first mortgage. He accordingly ordered that the confirmation of the sale be denied, that said sale be set aside and the amount paid thereon be returned to the interveners, and that the sheriff proceed to make a new sale of the property; which order was made conditional upon payment by the interveners of the costs of the sale so set aside, of interest on the amount of plaintiffs' mortgage interest in the premises from the time of the first sale to the time when another sale could be had, amounting to $77, and $25 costs. It further appeared that the sheriff, out of the moneys received on said sale, had discharged tax liens upon the mortgaged premises, amounting to some $450, in ignorance of an unusual and peculiar provision in the judgment requiring the sheriff to first satisfy the amount due the plaintiffs upon the judgment, and to apply to tax liens only such surplus as might remain. The court in said order provided that the sheriff should thenceforward have a lien upon said premises for the amount of the taxes so paid, together with 6 per cent. interest from the time of payment, which should be prior and superior to the plaintiffs' lien. From this order the plaintiffs appealed.

Sylvester, Scheiber & Orth, for appellants.

Reitbrock & Halsey, for respondents.

DODGE, J. (after stating the facts).

The facts, as above stated, are not antagonized by any clear preponderance of the evidence. In acting thereon the circuit...