Babcock v. Perry

[283] By ihe Court, Smith J. We do not see how, agreeably to the established rules of equity practice, the order of the court below can be sustained. The suit was commenced August 21st, 1852; the defendants were all personally served with process, and purposely made default; permitted a final decree to be made, and proof as to the mode of sale, whether in parcels or in whole, and voluntarily took their chance of protecting their rights at the sale. The appellant attended the sale, and there had ample opportunity to secure his own rights in the premises. It is unnecessary to recapitulate the facts in this case, as they are precisely like those presented on the former appeal in this case, with one or two additions, which will be noticed hereafter. What we then said in relation to the merits of the controversy may be applied here with equal force. See Babcock vs. Perry, 4 Wis., 31. Then the application was- to vacate the default and to be permitted to file an answer. Now the motion is to set aside the former sale, and for a re-sale of the premises. The sale was made in February, 1853, and their motion is filed in May, 1856. Waiving for the present all objections to their motion on the ground of delay in making it, we will examine the objections to the sale, made by the defendant Perry. These are: 1st. That the premises were sold together, and not in parcels; and 2nd. That on the day of, and before the sale, he offered the complainant that if he would not sell certain twenty acres of the premises, which had been purchased by him, he, Perry, would bid on the remainder the full amount of debt, interest and costs. In answer to the first objection, it is to be observed that the sheriff as well as the party was bound to pursue the order of the court in making the sale, and that order was that the premises should be sold together. It is not compe [284] tent for the complainant and one of several defendants interested in the subject matter, to stipulate a mode of sale different from that prescribed by the order of court. Though one defendant might be benefitted thereby, others might be greatly injured. The presumption is that the court has fixed the mode of sale with a view to the rights of all the parties to the suit, and it is not competent for two or more of the parties to depart from the order. But, setting this consideration aside, and supposing th at the defendant Perry did agree, if the complainant would release twenty acres from the operation of the decree, to bid the full amount of debt, interest and costs for the remainder, it was difficult to perceive how he was or could be injured by including the twenty acres in the sale. If Perry had bid the amount of the debt, interest and costs for the premises, less the twenty acres, would he have been any worse off if the twenty acres were included ? In the latter case he would have been the owner of the whole premises for the same sum as in the former case. Including the twenty acres in the sale would not increase the cost in the least. The deed and confirmation would certainly constitute as good a title to the twenty acres as the release of the complainant without sale. There is nothing then in this offer which suggests any equitable consideration whatever, but on the contrary, taken in connection with the threat made at the time, that if the complainant did proceed to sell, the defendant would procure the sale to be set aside with costs, the offer is not altogether so frank and candid as good faith would seem to require. But the defendant Perry says in his affidavit that on the day of sale, and before the sale, he offered to the complainant the whole amount of his debt, interest and costs, if he would not sell the premises. If this fact was clearly established by uncontradicted evidence, we should struggle hard to set aside the sale, notwithstanding the lapse of time and the laches of [285] the defendant. A mortgagee who will refuse his debt, interest and costs, even on the day of sale, and wantonly proceed te sell, deserved little consideration from a court of equity. Unfortunately, however, this fact is positively denied by the complainant, and his denial is corroborated by other witnesses, while the statement of the defendant is also corroborated. Probably the evidence is about balanced, and the matter is left in statu quo. Certain, however, it is, that there was no tender of the amount due, and the evidence of the offer is not conclusive, or satisfactory. And we cannot avoid the remark, that if this offer was actually made as now alleged, and in good faith, it is most singular that it never has been mentioned before, during all the litigation in this case. Had this fact been stated on the hearing of the motion for confirmation, and the money brought into court, the confirmation would have been denied without hesitation. Why, then, if the fact existed, was it not brought to the knowledge of the court below at once, and thus end the matter ? So far from this, nothing is heard of the fact here stated until May, 1856, more than three years from the time of sale, when for the first time a motion for re-sale is made, based upon the two offers above noticed. In his petition for a re-hearing, the defendant Perry states that he made default because he did not wish to incur the expense of a defence, and because he supposed the premises would be sold in parcels, and he could protect himself at the sale. Now he applies for a re-sale, and states that before the sale he offered and tendered the complainant the full amount of his debt, interest and costs. We have already disposed of this latter allegation. It is certainly true that the defendant might have protected his interest at the sale. He could have bid the amount and taken the whole property, just as well as to bid the amount for a part of it. Upon a careful review of the whole case, considering the [286] evidence, the conduct of the defendant, his laches, the incompatibility of the several positions from time to time assumed by him, we cannot avoid the conclusion that to set this sale aside now and order a re-sale, would be grossly unjust to the complainant, and would visit upon him all the consequences of the faults, the errors and the laches of the defendant We are also impelled to the conclusion that if the defendant has lost any rights or interests, it is the consequence of- his own negligence and laches, from which a court of equity cannot now relieve him. The order of the circuit court must be reversed and the cause remanded.