Wahl v. H. W. & S. M. Tullgren, Inc.

• Decision Date: 02 June 1936
• Citation: 267 N.W. 278,222 Wis. 306
• Parties: WAHL ET AL. v. H. W. & S. M. TULLGREN, INC., ET AL.
• Court: Wisconsin Supreme Court

222 Wis. 306

267 N.W. 278

WAHL ET AL.

v.H. W. & S. M. TULLGREN, INC., ET AL.

Supreme Court of Wisconsin.

June 2, 1936.

Appeal from an order of the Circuit Court for Milwaukee County; Daniel W. Sullivan, Judge.

Reversed.

Vendors' action by Natalie Wahl and others against H. W. & S. M. Tullgren, Inc., and others for specific performance of a land contract. From an order entered December 7, 1935, confirming a sale of the premises made pursuant to judgment and denying a judgment for deficiency, the plaintiffs appeal. The facts are stated in the opinion.

William E. Burke, of Milwaukee, for appellants.

Churchill, Bennett, Churchill & Davis, of Milwaukee, for respondents.

FOWLER, Justice.

A judgment for specific performance of a land contract was entered in an action brought by the executor and legatees of the vendor which decreed a sale of the land and contained the following provisions:

(1) “If the proceeds of such sale be insufficient to pay the amounts aforesaid, the said Sheriff shall specify the amount of such deficiency in his report of sale, and upon filing and confirmation of said report, judgment shall be rendered against the defendants, H. W. & S. M. Tullgren, Inc., a corporation, and H. W. Tullgren, who are personally liable for the payment of the debt, for the amount of such deficiency with interest thereon, and the plaintiffs shall have execution therefor.

(2) It is further adjudged and decreed: that the court shall, upon application for confirmation of such sale, if it has not theretofore fixed an upset price, conduct a hearing and establish the value of said property and, as a condition to confirmation, require that the fair value of said property be credited upon the amount due to the plaintiffs from the defendants, H. W. and S. M. Tullgren, Inc., a corporation, and H. W. Tullgren.”

No appeal was taken from this judgment.

On sale pursuant to the judgment the plaintiffs bid in the premises for $50,000 subject to over $5,000 unpaid taxes. The amount due on the judgment was $61,341.42. The plaintiffs moved for confirmation of the sale and for a judgment for deficiency. The defendants then moved the court, pursuant to provision (2) above quoted, “to conduct a hearing and establish the value of said property to the end that the fair value of said property so determined and established be credited upon the amount” due upon the judgment. Such hearing was had and the value fixed at $67,000. The court thereupon confirmed the sale, but denied a judgment for deficiency because the value fixed exceeded the amount of the judgment, and crediting the amount of that value as required by provision (2) above quoted left nothing due upon the judgment.

The plaintiffs contend that the evidence produced at the hearing to fix the value of the premises does not support a valuation in excess of the amount bid at the sale; and that the court was obliged, if it confirmed the sale, to render a judgment for deficiency.

But for provision (2) of the judgment, the latter contention would be plainly correct under the ruling in Big Bay Realty Co. v. Rosenberg, 218 Wis. 318, 259 N.W. 735, and Buel v. Austin (Wis.) 263 N.W. 82. But it is contended by the respondents that, as the judgment expressly provides for the fixing by the court of an “upset price” and that the price so fixed be credited upon the judgment, and as this provision of the judgment was not appealed from by the plaintiffs, and therefore became binding upon the plaintiffs whether right or wrong, the court correctly applied the amount upon the judgment and properly denied a judgment for deficiency.

[1][2] The ruling of the court would seem at first blush to be correct. But provision (2) of the judgment is in the express language of the opinion in Suring State Bank v. Giese, 210 Wis. 489, 493, 246 N.W. 556, 558, 85 A.L.R. 1477. It was manifestly taken from...