Newman v. Ogden

WiNslow, J. The circuit court found the disputed questions of fact substantially as the plaintiffs claimed them to be, and a perusal of the record satisfies us that his conclusions are fully justified by the evidence. The circuit court also found, from these facts, that the attempted foreclosure must be set aside and the plaintiffs allowed to redeem. In this, also, the court was right. Foreclosure by advertisement is a proceeding ex parte in its nature, and peculiarly open to abuse. For this reason, probably, the statute has [57] provided (E. S. sec. 3581) that the mortgagee may faÁrkj and in good faith purchase the property at the sale. In this case it appears that the mortgagee instituted and conducted the foreclosure proceedings, not for the purpose of securing his pay, but for the purpose of securing title to the land without the mortgagors’ knowledge; that he selected, in pursuance of this design, a newspaper published in another city, for the publication of his notice, and thereby succeeded in keeping probable or possible bidders, and the mortgagors in ignorance of the fact of foreclosure; that he purposely refrained from asking for the money due him, although he must have known that he could get it if he chose; that he discouraged at least one possible bidder, by telling him that he thought there was nothing in it and that he would have to bid it off himself to get his money} that he swelled the amount of the claim in his notice by including the principal, which was not yet due, and by including also a solicitor’s fee for $50, when it clearly appears-that his alleged employment of a solicitor was merely nominal, and consisted in procuring from his brother (an attorney) instructions as to procedure, and that he never paid or credited to his brother the fee; that hé made no effort to obtain a bidder, but bid off the property at about one sixth of its real market value, and much less than he himself knew was its true value. These facts seem to us amply sufficient to show that the defendant did not purchase the premises fairly or in good faith. It avails not to say that the letter of the statute was not violated. The statute required of him also fairness and good faith, and, in the absence of these essentials, he cannot purchase. Maxwell v. Newton, 65 Wis. 261. The circuit court followed the only course open to a court of equity, under the evidence. By the Court.— Judgment affirmed. PiNNey, J., took no part.