Allis v. Sabin , 17 Wis. 626 ( 1864 )

By the Court,

Cole, J.

We see no good ground for saying that the parties stipulated that the mortgaged premises should be sold according to chap. 220, Laws of 1859. Indeed, the only stipulation we find, made before judgment, is the one signed by the attorneys of the mortgagors, in which they agreed to withdraw the answer of Eben H. and Harriet C. Sabin, and consented that the plaintiffs should take judgment and decree pursuant to the prayer of the complaint. On the 26th of May, 1862, two days after the date of the judgment, the plaintiff’s attorneys stipulated and agreed that no proceedings should be taken on the judgment to sell the mortgaged property within a year from the time the judgment was rendered, providing the defendant Sabin, within a reasonable time, not exceeding two months, paid the plaintiff’s attorneys all disbursements in the action, and the taxed attorney’s fee of $25. The case shows no violation of the spirit of this agreement.

It is further claimed that the affidavits read on hearing the application to confirm the sale show that there was collusion between the bidders at the mortgage sale. This charge is not sustained by the evidence. It is true 'Sabin states in his affidavit that three persons (whom he names) were present at the sale, and the principal bidders, and were, apparently bidding against each other; but that he was advised and informed, and believed, that there was collusion between them to have the premises bid off at less than their real value, and that there was some arrangement between them to prevent bidding. It is a little remarkable, if these parties were in collusion, and had entered into some arrangement to prevent bidding, that they should “ apparently ” be bidding against each other. Such a charge of fraud, even if it were uncontradicted, would not be entitled to very great consideration. It is vague, indefinite and not very consistent with itself. Austin, who was a subsequent judgment creditor, attended the sale to protect his interest, and he states, in the same general manner, that he was informed and believed that there was collusion between the bidders at the sale, and that, if it had not been for such collusion, the premises would have brought a much larger sum than two thousand dollars, the amount they were sold for. Austin, of course, was not a party to the alleged fraudulent agreement of the bidders. He attended the sale, as he says, for the express purpose of bidding off the property if it should be sold at a sacrifice or for a sum not sufficient to pay all liens upon it prior to and including his judgment. He did not however bid, because, he says, he was informed and believed the amount the premises sold for would be sufficient to pay all incumbrances, including his judgment.

In opposition to these general charges, the parties implicated deny, in the most positive and explicit manner, that there was any collusion between them to prevent competition at the sale, or any understanding or agreement to forbear to bid freely or as bigb as eaeb might think proper. But, without dwelling upon tbeir affidavits, we will say that no case was made out for setting aside tbe sale on tbe ground of fraud or collusion on tbe part of tbe bidders.

Tbe objection that tbe sale should be set aside on tbe ground of inadequacy of price, does not seem to be seriously relied on here. As already remarked, the property sold for two thousand dollars, and Austin says, if a resale should be ordered, be was ready and willing to bid tbe sum of twenty-four hundred dollars. This is tbe only offer made to raise tbe bid, and in no possible view could it be claimed to establish a case where a sale of mortgaged premises should be set aside on the ground of inadequacy tif price.

We are of tbe opinion that tbe sale was properly confirmed, and the order of tbe circuit court confirming it is affirmed, with costs.