Walker v. Gulliford

Lyon, J. By repeated adjudications of this court, the law is settled in this state, that a judgment of foreclosure upon a mortgage executed after ch. 195, Laws of 1859, went into operation, must contain a clause giving the mortgagor the right of redemption within a year from the sale. Jones v. Gilman, 14 Wis., 450; Van Nostrand v. Mansfield, 16 id., 224; Briggs v. Seymour, 17 id., 255; Carberry v. Benson, 18 id., 489. See also Rosseel v. Jarvis, 15 id., 571. The judgment in this case contains no such clause, and is therefore erroneous. True, it directs the sheriff to give the purchaser a certificate of sale. In this respect it is like the judgment in Rosseel v. Jarvis; but it is unlike that judgment in that it does not direct the sheriff to withhold a deed until one year after the sale. It is said in the brief of counsel for the plaintiff, that the premises have been sold by the sheriff, and a certificate of sale given by that officer to the purchaser, pursuant to the law of 1859. These facts do not appear in the record of the case returned to this court, and we cannot presume that they exist. But did they appear in the record, the result would be the same. The mort-. gagors are entitled to have the premises sold on a correct judgment. It is fair to presume that if the judgment is defective in substance, persons who might otherwise bid at the sale will be deterred from doing so, and that thus the property may be sold for a less sum than it would have brought under a proper judgment. Eor this reason the mortgagors, or any of the defendants interested in the equity of redemption, have the right [328] to insist that the judgment shall be in legal form, to the end that the mortgaged property may sell for the highest attainable price. 2. It is said in the brief of counsel for the plaintiff, that this appeal was taken pending a motion by the defendants in the circuit court to vacate the judgment; and it is argued that the appeal should be dismissed for the reason that the printed abstract of the case does not show that any such motion was made. The record fails to show the pendency of such motion, or that the motion was made in the circuit court at any time. But did it appear therefrom that the motion was made and was pending when the appeal was taken, it is not perceived how the appeal could be thereby affected, or that there was any necessity for printing that portion of the record. By the Court. — The judgment of the circuit court is reversed, and the cause remanded with directions to that court to render the proper judgment.