Welsh v. Blackburn

• Decision Date: 10 March 1896
• Citation: 92 Wis. 562,66 N.W. 528
• Parties: WELSH ET UX. v. BLACKBURN.
• Court: Wisconsin Supreme Court

92 Wis. 562

66 N.W. 528

WELSH ET UX.

v.BLACKBURN.

Supreme Court of Wisconsin.

March 10, 1896.

Appeal from circuit court, Richland county; George Clementson, Judge.

Action by John S. Welsh and Mary Welsh against G. H. Blackburn. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

This was an action in equity to set aside a mortgage and the foreclosure thereof by advertisement, so far as affects the homestead of the plaintiff. The evidence showed that the plaintiffs, who were husband and wife, on the 2d day of January, 1889, for a valuable consideration, executed a mortgage for $467.58, covering 120 acres of land, of which 40 acres was their homestead, to T. J. Shears and O. A. Metscher, who were partners, and received the same as partnership property. The mortgage purported to be properly witnessed and acknowledged, but the plaintiffs introduced evidence tending to show that it was never in fact witnessed nor acknowledged. The mortgage was recorded. Afterwards the firm of Shears & Metscher dissolved, Mr. Metscher retiring, and Mr. Shears taking the assets and assuming the debts of the partnership by oral agreement. After the dissolution, and on May 26, 1891, Shears sold and delivered the notes and mortgage, for a valuable consideration, to the defendant, Blackburn, and executed a written assignment thereof to him, which was witnessed, acknowledged, and recorded. The notes not being paid, Blackburn foreclosed the mortgage by advertisement, under the authority to so foreclose contained in the mortgage, and upon sale the sheriff sold the entire property to the defendant, and executed a certificate of such sale on the 1st day of September, 1891. The court entered findings and judgment as follows: “The defendant, Blackburn, in open court having stated his willingness to take from the plaintiff in this action, or any other interested party, the principal of the mortgage that was given to Shears & Metscher, and thereupon to release said mortgage, and quitclaim all his interest in said land, and the plaintiffs in this action having made no offer, either prior to the commencement of this action or pending, to pay any portion of the mortgage indebtedness in question, and the court, being of the opinion that before the plaintiffs can come into court and ask for the relief they demand they should do equity by paying or offering to pay the indebtedness secured by this mortgage, without the costs of foreclosure by advertisement,...