Raymond v. Pauli

Dixon, C. J. An execution sale of land in disregard of the law which requires it to be offered in separate parcels, is not void, but only voidable at the instance of the party aggrieved. The remedy is, to apply within a reasonable time, and have the sale set aside on that ground. Bunker v. Rand, 19 Wis., 258. Undoubtedly a reasonable time must be some time within the period fixed by law for a redemption. If that period is allowed to expire, and a deed to be executed, the application cannot afterwards be made, unless under special circumstances of fraud or mistake, showing some reasonable excuse for the delay ; and then it must be made to a court of equity. But it is very doubtful whether a subsequent mortgagee of a part or the whole of the premises can at any time make the application. How can he be said to be prejudiced by such an irregularity in the sale? If he-wishes to redeem from the judgment before sale on execution, he can do so only by paying the whole judgment. The same is true in case he redeems after the execution sale. His rights, therefore, are the same after the sale as before, except, perhaps, that he might, in certain cases be liable to lose the costs of the sale. If he should redeem within two years from the time of the sale (as I think he must do, except in cases of fraud or evident mistake excusing the delay), and the judgment debtor or owner of the land should, afterwards, and before the expiration of two years, apply to the court from which the execution issued, and cause the sale to be set aside, the costs of the sale might be lost. But as a mortgagee has no legal right of redemption under the statute (R. S., ch. 134, secs. 55, 60), but must, in the proper case, apply to a court of equity upon his equitable right, this [535] objection may, in every instance where the sale is irregular, be easily obviated by suitable directions to be contained in the judgment. A conditional order may be made for the payment of the costs in case no reasonable application is made by the judgment debtor, or other person aggrieved, to set the sale aside. I think, therefore, that a subsequent mortgagee cannot apply to set aside the sale for the irregularity, but that his only remedy is upon his equitable right by action to redeem. If the mortgage debt is due, he may foreclose and make the purchaser at the execution sale, or holder of the certificate, a party, and pray a redemption, and thus complete relief will be afforded in one action. If the debt is not due, then an action to redeem must be instituted. But in either case, unless the delay is excused, the action must be commenced within two years from the date of the sale, or the right of redemption is gone. Equity follows the law in such cases, and the mortgagee has no longer time to redeem than the judgment debtor or mortgagor himself. Russell v. Allen, 10 Paige, 249; Cunningham v. Cassidy, 17 N. Y., 282. The mortgagee, the same as the judgment debtor, is deemed by his acquiescence to have waived the irregularity, and the title of the purchaser at the execution sale becomes absolute. Such seems to be the condition of the defendant in this case. Having made no attempt of any kind to impeach the plaintiffs title until the commencement of this action, it is too late now for him to do so. If ever irregularity of this kind can be waived, it appears to me it has been most effectually done here. At any time before the judgment of foreclosure and sale under the mortgage, the mortgagee might have commenced his action to redeem, or he might have made the purchasers at the execution sale parties to the foreclosure action, and asked a redemption. After the foreclosure sale and the making and delivery of the sheriff’s deed to the defendant as purchaser, the defendant had a legal right of redemption under the statute. R. S., ch. 134, [536] sec. 55, subd. 3. He might have so redeemed, at any time after the 21st day of May,-1862, and before the 5th day of January, 1863. He seeks to excuse himself for not having done so only on the ground that he had no actual knowledge of the recovery of the judgment, the issuing of the execution, and the sale thereon. This is no excuse at all. He had constructive notice of all these things. A duplicate certificate of the execution sale was filed by the sheriff in the office of the register of deeds on the day of the sale, and the defendant was bound to take notice of that. If he bought without examining the records and knowing the condition of the title, it is his own fault. The law will not excuse such negligence. If such an excuse were allowed, a great number of titles in the country could be overturned. There would be no security under our registry laws, and it is impossible to foretell where the mischief would end. I do not think this or any other ground of defense offered sufficient to justify the judgment of the court below. I think the judgment should be reversed. By the Court. — Judgment reversed, and cause remanded for further proceedings according to law.