Meehan v. Blodgett

• Decision Date: 29 December 1893
• Citation: 57 N.W. 291,86 Wis. 511
• Parties: MEEHAN v. BLODGETT.
• Court: Wisconsin Supreme Court

86 Wis. 511

57 N.W. 291

MEEHAN

v.BLODGETT.

Supreme Court of Wisconsin.

Dec. 29, 1893.

Appeal from circuit court, Portage county; Charles M. Webb, Judge.

Suit by James Meehan against Erastus L. Blodgett to foreclose a mortgage. From an order vacating the sale, plaintiff appeals. Reversed.

The other facts fully appear in the following statement by PINNEY, J.:

Judgment of foreclosure, and for a sale of the mortgaged premises in this action, was rendered December 4, 1889. It was dated and signed by the judge of the court, and filed with the clerk, on that day, the costs having been previously taxed and inserted therein, but it was not recorded or extended upon the record until March 17, 1890. The premises, which consisted of 40 acres of land, were advertised to be sold under the judgment, February 7, 1891, and on that day were sold to the plaintiff for the amount of the judgment, interest, costs of sale, etc., amounting to $785; and a sheriff's deed was executed to him, and thereafter recorded, but the sale had not been confirmed. The defendant, Blodgett, the mortgagor, on the 4th of March, 1893, more than two years after the sale, moved to set it aside on the ground that the judgment had not been entered at least one year before the premises were advertised for sale. This motion was founded on the affidavits of the defendant, Blodgett, and Charles P. Mason, and one Malick, the latter affidavit being to the effect, only, that he (Malick) was then ready and willing to pay the sum of $2,000 for the land, and to bid that sum for it in case of a resale; that he considered it worth more; and that its value was increasing. The affidavits upon which the plaintiff moved made no claim that the consideration for the sale was inadequate. The affidavits on behalf of the plaintiff were by himself, to the effect that in 1889 and 1890 the property was of the value of $650, and no more, but that its value had increased of late, owing to the building of a large paper mill in the neighborhood, and the improvement of the water power on the Wisconsin river, near which it is situated, and that the value of the land at the present time did not exceed $1,500; that he had offered it for sale in 1892 at that price, but could not obtain it. H. W. Lee deposed to the effect that, on behalf of the plaintiff, he obtained possession of the land soon after the sale, and had had possession for him ever since, that the annual income did not exceed $75, and that the amount bid for the land was more than the land was worth at the time of the sale; and he also deposed to conversations with said Mason in respect to the entry of the judgment, and with the defendant, Blodgett, and his son Charles, in relation to the judgment and sale; that the sale was made openly and without haste, and every opportunity given to persons to purchase. A. W. Sanborn deposed that the premises, at the time of the sale, were not worth more than $450, and Patrick Meehan that, during the years 1889 and 1890, said premises were of the value of $650, and no more, and their present value does not exceed $1,500. After the case had been heard upon the records and files and the aforesaid affidavits, and taken under advisement, leave was given to counsel, on behalf of the defendant, Blodgett, to file certain affidavits or affidavit in reply to some or all of the statements contained in the affidavit of H. W. Lee, read at the argument, and subsequently defendant's counsel filed with the court a somewhat lengthy affidavit of E. L. Blodgett, sworn to on the 25th of April, 1893, and one of Andrew Lutz, Jr., of the same date, and an affidavit of August Krohn on the next day, and also one of W. W. Mitchell. These affidavits were objected to. That of Blodgett was to the effect, among other things, that he had rented the land and house thereon, before the sale, for $150 a year; that he had no knowledge that the sale was to take place until on or about the day it was made, but he was informed and advised by different parties that the sale was prematurely made, and was illegal and void; that the plaintiff, before then, had promised to give him an opportunity to redeem from the judgment; that he has an offer from one Nelson of $2,000 for the land, and also from one Lutz of the same sum, as soon as he can settle with the plaintiff, and get a release of his claim; that, a few days after the sale, he, with Lutz, went to the plaintiff, and offered him the amount due on the judgment, with interest and costs, and demanded a quitclaim deed, but the plaintiff refused to give it. Lutz deposed that he considered the land well worth $1,500 at the time of the sale, and was now worth $2,000, which he would be willing to pay for it; and he corroborated the statement of the defendant as to his offer to pay the plaintiff the amount of the judgment, interest, and costs. Krohn deposed that the lands were...