McDonald v. Byrnes

Winslow, O. J. We are clearly of opinion that the court should not have imposed the condition. The notice of sale is an essential link in the chain of title. In the present case a part of the land was entirely omitted from the notice and a parcel of foreign land included. The notice described substantially a different tract of land from that ordered to be sold. It is unnecessary to hold that the sale was void on account of the failure to give the statutory notice, although that would seem to be the necessary effect of the decision in Collins v. Smith, 57 Wis. 284, 15 N. W. 192. Certain it is that through no fault of the appellants themselves the sale was irregular and defective. They were entirely justified in refusing to perfect the sale and pay in their money when they would only obtain a defective title. It may be admitted for the purposes of the case that equity would have power to correct the error in an action brought for that purpose, and perhaps by motion in this action, but the purchaser is entitled to something more for his money than a defective title coupled with the material for a successful lawsuit. The cases where courts have in the exercise of discretion [141] relieved purchasers from carrying out improvident bids resulting from mistake on the part of the purchasers, and have made such relief conditional upon payment of some substantial sum or sums of money to indemnify the other parties interested (Kremer v. Thwaits, 105 Wis. 534, 81 N. W. 654), have no bearing on the question here. The appellants were entitled to a deed based on regular proceedings in exchange for their money. The resale should have been ordered without condition. It is said that it does not appear that the record contains all the papers used on the application for the order as required by sec. 3050, Stats. (1898), but on examination of the record we find that the clerk has properly certified that all the original papers used by each party upon the application have been transmitted to us. By the Gowrt. — That part of the order appealed from is reversed, and the action remanded for further proceedings according to law.