Hill v. Hoover , 5 Wis. 354 ( 1856 )

By the Court,

Cole, J.

I am of the opinion that the order of confirmation in this cause must be .vacated and set aside, for the reason that the proof of notice of sale, filed by the sheriff with his report, is insufficient. The statute provides (sec. 65, chap. 98) that “ the affidavit of the printer, or foreman of such printer, of any public newspaper published in this.state, of the publication of any notice or advertisement which by any law of this state shall be required to be published in such newspaper, shall be entitled to be read in evidence in all courts of justice in this state, and in all proceedings before any officer, body or board, and shall be prima facie evidence of such publication, and of the facts stated therein.”

As this evidence is admissible only by virtue of the above provision, the affidavit cannot be admitted unless it is in strict conformity to it. It is necessary that it should be made by the printer, or the foreman of the printer, of the newspaper in which the notice is published; and that fact must be distinctly stated in the affidavit, and sworn to by the person making it. It is a material part of the affidavit, and cannot be dispensed with. In the present case the affiant, by way of recital, describes himself as foreman, but he does not swear that he is foreman, consequently the affidavit is not such as the statute requires. A correct form is given in 2,Barb. Ch.. Pr. 706.

The application made in the Circuit Court on behalf of the appellant, was-not only to vacate, .the order of confirmation, but to set aside the sale altogether, for several reasons set forth in tbe motion. It is not necessary to further notice tbe first reason assigned; and it is perhaps sufficient to say, in regard to tbe second, that Hoover was not entitled to notice of tbe proceedings, since he bad made no appearance in tbe cause. But tbe main grounds relied upon, in tbe court below, and in this court, to set aside tbe sale, are, 1st, surprise; and 2d, inadequacy of price paid at tbe sale.. It is insisted that the sale should be set aside on account of surprise, or because Hoover was in some way misled by Hill; and that this case is within tbe principle of Catton vs. Strong (1 Wis. R. 471); and several others, cited upon tbe briefs of counsel. I do not propose examining these cases at any length, and will only remark, in reference to them, that they do not appear to me to support the present case. In that of Williamson vs. Dale (3 J. C. R. 290), tbe executors were induced to believe tbe sale would not take place when it did; and this belief was founded upon representations made to them by their agents, of conversation which be had held with tbe plaintiff and bis solicitor; consequently they were surprised by tbe sale and not prepared to meet it. These representations were verified by affidavits which were not contradicted. In that of Collier vs. Whipple (13 Wend. 224), the conduct of tbe master,, who made tbe sale, was calculated to mislead, and did mislead tbe agent of Whipple, as to tbe time tbe sale would take place. In that of Tripp vs. Cook (26 Wend. 143), Tripp, who was surety, in an interview be bad with tbe complainant and tbe agent of Cunningham, tbe principal debtor, understood, and was led to believe by them, that tbe suit would be settled. This conversation was bad between tbe parties about a week after tbe service of tbe subpoena upon Tripp. He acted upon this supposition, and beard nothing to tbe contrary until after tbe sale of tbe mortgaged premises, and tbe levying of an execution upon bis own property for tbe deficiency, although be resided in tbe same place with tbe complainant, and saw him almost daily. In Strong vs. Catton, tbe latter bad bad different conversations with the complainant, Martin, upon tbe subject of postponing tbe sale, so as to enable him to raise tbe money to pay off tbe decree ; and Martin assured Catton be would consult bis interest as to the time of sale. Prom these assurances Oatton was induced to believe there would be a postponement of the sale, and remitted his exertions to obtain money to discharge the decree.

If we examine the affidavits filed on the hearing of this application for a re-sale, we shall find that they present no such case as any of those we have been considering. It appears that the parties had an interview for the purpose of settling the suit, at the office of Wells & Brigham. This was on the 11th of August, a few weeks after Hill filed his bill of foreclosure against the mortgagors, the Nelsons, and very soon after the service of the subpoena upon Hoover. Hill was about going east, and was in need of the money due upon the mortgage. He requested his brother Joseph to see Hoover, and urge upon him a settlement. Hoover had purchased the property, subject to the mortgage, and it was but reasonable to suppose that he would be anxious to discharge it, and save the costs of foreclosure. At this interview, Hoover in substance says in his affidavit, after stating to Hill that be was surprised, considering their relations, that the mortgage should have been foreclosed without notice to him; that he proposed paying the amount due, and settle the matter, but claimed that since he had always been ready to pay, he ought not to be required to pay more than half of the solicitor’s fees secured by the mortgage; that Hill said affiant must pay the costs, but that he (Hill) was then going east, and that the affiant could fix up matters after his return ; and further, that this conversation was on Saturday after bank hours ; and that he expressly stated that he would settle the amount and costs on the next Monday, when Hill stated he was going east as aforesaid; that the affiant had always been ready and willing to pay the amount of said mortgage, costs and interest, and understood that Hill desired it settled after his return, and that no advantage should be taken of him for that reason ; that he did not afterwards see Hill, except in a buggy passing, until after the sale; and that relying on the understanding aforesaid, he employed no lawyer to watch the proceedings, and was utterly ignorant of the decree and sale until after it took place.

Hill; in bis affidavit, gives quite a different account óf tbis whole transaction. He states that on or about the 7th of August he met Hoover at the Cold Spring House, and that they hada conversation about the suit; that Hoover said he was willing to pay the amount due on the mortgage, and would call next day at his office and settle; that he did not want to put the affiant to trouble, and wished to avoid costs. He says that Hoover not coming as he agreed to, he requested his brother Joseph to see him and urge him to come down and settle as he had proposed ; that his brother did see him, and by agreement they met at the office of Wells & Brigham, at 2' P. M., on the 11th of August; that at this interview, Hoover proposed to settle by paying the amount of the note secured by the mortgage and one-half of the costs, and that he insisted upon his paying the whole amount of the note and the costs, and refused to settle upon any other terms; that Hoover then said that money was worth twelve per cent, to him, and that he believed he could make as much upon the money as the costs would be, if he let the suit go on, or words to that effect; that Hoover afterwards said, that he had not the money with which to pay the note then, and that he should be obliged to see if he could raise it; that he then stated to Hoover that he should start for Buffalo the next day, or early the day after, and that it must be fixed then to be of any use to him. Hoover said this was impossible, and that the matter must be left until his return, and so the conference ended; that he went away with the impression that Hoover chose to keep his money till a decree could be obtained, and pay extra costs, and that he directed his solicitors to press the suit as fast as possible.

This statement of Hill is strongly corroborated by the affidavit of his solicitor, Brigham. He states that he was present at the interview between the parties, and that in the conversation, Hoover inquired of him the probable time it would take to get a decree against him, for the purpose, as deponent understood, of determining whether it was better to pay up at that time, or let it run till he was compelled to pay by a decree; that he then informed Hoover that there would probably be a decree in September following, and otherwise generally stated to him the time that would probably be required for the several steps before sale, as nearly as be could, wbicb deponent believed did not vary' much from tbe time actually taken.

I do not deem it necessary to make any further observations upon these affidavits, than to say, that I do not think they show a case of surprise as to the sale, or furnish any foundation for the charge that Hoover was misled about the suit by either Hill, or the complainant’s solicitors. Hoover must have known that he could put an end to the suit at once by paying the requisite amount into court, or to the solicitors of complainant. If he was really anxious to settle, why did he not do this ? Or, why did he not inquire for and find Hill ? He knew that Hill had returned from the east. It is certainly a little remarkable that he did not find him and, “ fix up matters,” as he says he understood was to be done after his return. ■; It was not Hill’s business to run after him, and he had no right to expect it, after what had passed between them. . The conclusion to which I have come upon these affidavits is, that after the interview on the 11th of August, the parties intended to keep each other at arm’s length, neither giving or asking favors: Hill did not expect his money until decree and sale, and Hoover did not intend to pay until that time; for if he had, there was every opportunity for him to have done so. He probably did not intend the property should be sold, and pass into other hands. He undoubtedly expected to be present at the sale, and it is attributable to his own neglb gence that he was not.

Ought the sale to be set aside on account of the inadequacy of the pi’ice paid upon the sale ? The property was bid in by the solicitor of the complainant — doubtless, for the use of the complainant — for $1,138.06, the amount of the decree and costs. Hoover swears that the property was worth, at the time of the sale, $4,000. At sheriffs’ sales, property is almost always, in this country, sold at a sacrifice. Probably this is the experience and observation of all. And it is highly important, in order to secure reasonable competition, that there should be confidence in the stability of these sales, otherwise the great inducement for bidding will be taken away. These obvious considerations of expediency, and sound public policy, have time and time again, been stated and enforced by tbe most eminent judges. Consequently courts will not disturb these sales except in special cases. See Strong vs. Catton, Tripp vs. Cook, Williamson vs. Dale, Collier vs. Whipple, cited above; also Lansing vs. McPherson, 3 J. C. R. 424; Duncan vs. Dodd, 2 Paige, 99; and cases cited in note “ 2,” 2 DanH Ch’y Prac. 1465. In this case there is no ground for saying that Hoover was misled by the complainant or his solicitor. His property was sacrificed through his own neglect or inattention to look after it. There is no deficiency to be paid by him or anybody else. He does not stand in the attitude of an infant, surety, or of a creditor, interested in the equal distribution of an insolvent estate. I therefore think that the Circuit Court very properly refused to set aside the sale. But the order of confirmation of sale must be reversed and cause remanded for further proceedings, according to law.