Kremer v. Thwaits

Dodge, J. The facts as above stated are not antagonized by any clear preponderance of the evidence. In acting thereon the circuit court was justified in exercising a very broad discretion, and, unless that discretion is clearly abused to the hurt of appellants, it will not be interfered with oa appeal. Homestead L. Co. v. Joseph Schlitz B. Co. 94 Wis. [537] 602; Koop v. Burris, 95 Wis. 301; Veit v. Meyer, ante, p. 530. We discover no snob abuse. It must not be forgotten that the present order was made not on a proceeding to set aside a sale which had already become perfect and which the court had judicially approved by an order of confirmation, but upon a showing of reasons why the confirmation should not take place. Courts do, and properly should, refuse confirmation of a sale on less showing of inequity or impropriety than would be required to vacate or set aside one already confirmed, on the same principle that a court of equity will often refuse to render judgment upon a state of facts which would not justify it in setting it aside after it had been rendered. Rorer, Judicial Sales (2d ed.), §§ 106, 108, et seq.; Id. § 150; Freeman, Void Judicial Sales, § 48. The attitude of a court of equity in considering the confirmation of one of its own sales is very much more liberal than that of the same court, or of a court of law, when invoked in a suit to undo what has been brought about by mistake. It is a broad and comprehensive consideration of fairness and protection of the rights of all parties interested which should govern the court in the former case. No court is interested in perfecting an unfair or an unjust sale, whatever may be the attitude of individual parties. Freeman, Void Judicial Sales, § 48; Strong v. Catton, 1 Wis. 471, 494; Hubbard v. Taylor, 49 Wis. 68; Koop v. Burris, 95 Wis. 301; Brewer v. Landis, 111 Mich. 217. In this case it was made apparent that the interveners-had bid more than the property was worth upon a fair and honest mistake. The court was convinced that they would not have made such bid had they understood the situation; and while, of course, they should be held responsible for any injury which resulted to others by reason of their mistaken conduct, it would have been inequitable to have conferred rights of substantial profit upon the plaintiffs before the sale had become fully completed. The terms imposed protected [538] ¡the plaintiffs from, all loss by reason of tbe delay imposed on them by the postponement of sale to a later date, and protected them from any expense incurred upon the sale set aside, and, in addition, gave to them an allowance of $25 to compensate them for any additional trouble imposed on them. We are satisfied that the order in this respect accomplished substantial justice and equity, and merely relieved the inter-veners from an unjust burden resulting from an honest mistake, although perhaps it might have been avoided by more diligence, and that it suffered to be imposed upon the plaintiffs no injury resulting from that mistake. Much the same considerations apply to the order establishing a lien in favor of the sheriff for the taxes paid by him in misapprehension of the direction of the judgment. While, probably, the showing would not have been sufficient, in a suit by him for tha't purpose, to have entitled him to subro-gation for the taxes so paid, yet no injury or prejudice results to the plaintiffs from the transaction. The land is under no greater burden, prior to the plaintiffs’ mortgage, than it was before; indeed, the burden is, in a measure, lightened as the interest is reduced from the statutory fifteen per cent, to six per cent. We are satisfied no injury has thereby been done the plaintiffs of which they have a right to complain, or which should justify a reversal of the order. Some complaint is made for that the judge, while the matter was pending, made a personal inspection of the mortgaged premises, which he certifies materially aided him in reaching his decision. We fail to discover any prejudicial error in this circumstance. Even if, as independent information upon the subject of value, it was improper to be considered, such inspection may greatly aid the judge in -understanding and weighing the evidence before him in the form of affidavits attempting to describe methods of division of the premises, and the adaptability and value of the buildings upon such subdivision. This purpose is recognized as [539] <even justifying inspection by a jury. If necessary to sustain "the order, we should not hesitate to indulge in a presumption that the information thus acquired was only so applied. Why should not the judge use his knowledge of the premises to test the force of an affidavit as to their situation and value, ■as well as he should use his personal knowledge of the character of the affiant to test its credibility ? This is essentially the province of a trial judge. By the Court.— The order appealed from is affirmed.