Hurlburd v. Freelove

3 Wis. 537

• Court: Wisconsin Supreme Court
• Decided: June 15, 1854
• Status: Published

Opinion

By the Court,

Whitow, C. J.

We think that the order made by the court below, overruling the mo tion to dismiss the petition for a ré-heaiing, must be reversed.

If, as is claimed by the petitioner, no valid decree was made by the District Court, in the foreclosure suit, no re-heafing is necessary, as nothing has been done which has prejudiced his rights. He still has the right to redeem by paying the sum actually due upon the mortgage.

If the decree is valid, we see no reason for setting ^ aslQ-e and granting a re-heanng? as it is not pretended but that there was actually due upon the mortgage the sum for which the decree was made. If a re-hearing should he ordered, the result would he, that another decree would he made for the same amount as the one already rendered, with interest added, less perhaps the value of the rents and profits of the land while it has been in the possession of the respondents.

The injury complained of by the petitioner, resulted from the false representations made by Hillard S. Hnrlburd as to the amount necessary to remove the incumbrances upon the land, which prevented. Shreeves and Chandler Freelove from paying the sum actually due upon the mortgage, and thus preventing a foreclosure. This is no cause for granting a re-hearing.

If the petitioner has any remedy, he has entirely misconceived it, as it is apparent that he can obtain it only by a bill setting.up the fraud complained of, if the decree of the District Court is valid, and if it is a nullity, by taking the proper measures to redeem.

The order of the Circuit Court is reversed.