Jesup v. City Bank of Racine

Wisconsin Supreme Court

Jesup v. City Bank of Racine

15 Wis. 604

CourtWisconsin Supreme Court

DecidedOctober 11, 1862

StatusPublished

Cited by7 cases

This text of 15 Wis. 604 (Jesup v. City Bank of Racine) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jesup v. City Bank of Racine, 15 Wis. 604 (Wis. 1862).

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Opinion

By the Court,

PAINE, J.

This is an appeal from an order setting aside a sale of a rail road on a mortgage foreclosure. It is objected that the order is not appealable. But such orders have always been held appealable here, and if a change is desired it is for the legislature to make it. See Carney vs. The L. C. & M R. R. Co., ante, p. 503.

The reason for setting aside the sale was, that the foreclosure judgment on which it was made was afterwards reversed in this court. The general rule is conceded, that when a sale is allowed to take place upon a judgment, without any steps taken to stay procedings, the title of the purchaser will not be divested by a susequent reversal of the judgment for error. There are authorities which make a distinction between cases where the purchase is by a stranger who advances his money, and those where it is by the plaintiff in the judgment. This distinction was sustained by this court in the case of Corwith vs. The State Bank of Illinois, ante, p. 289, where we held that the reversal of the judgment, which was a mere personal judgment, was a good reason for setting aside a sale where the plaintiff in the judgment was the purchaser. But the reason of the rule is, that the reversal of the judgment destroys the right to have the property sold at [609]*609all, and if upon the merits, it shows that the plaintiff had no claim against the defendant. It such case it is no more than just that a plaintiff who has acquired title to another’s land on the strength of such a judgment, should restore it. He has advanced nothing, and when his judgment falls, all pretense of right in him to hold the land seems to fail.

But the same reason does not exist in the case of a judgment of foreclosure where the reversal, as in this case, did not defeat the entire claim, but only reduced the amount. There a claim is still left. The mortgage itself creates a lien upon the land, and a liability to sale. If the sale in such a case is set aside, the only result is that it must be sold over again. Upon these grounds we think the principle adopted in the case of Corwith, vs. The State Bank, should not be applied to a sale on a mortgage foreclosure, where the reversal does not defeat the entire mortgage debt, even though the mortgagee be the purchaser. In such a case it should be shown that there was some unfairness in the sale, or that the property would, on a resale, bring a larger amount than the bid at the first sale.

This being the only reason for setting aside the sale, the order is reversed, with costs.

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By the Court,

PAINE, J.

This is an appeal from an order setting aside a sale of a rail road on a mortgage foreclosure. It is objected that the order is not appealable. But such orders have always been held appealable here, and if a change is desired it is for the legislature to make it. See Carney vs. The L. C. & M R. R. Co., ante, p. 503.

The reason for setting aside the sale was, that the foreclosure judgment on which it was made was afterwards reversed in this court. The general rule is conceded, that when a sale is allowed to take place upon a judgment, without any steps taken to stay procedings, the title of the purchaser will not be divested by a susequent reversal of the judgment for error. There are authorities which make a distinction between cases where the purchase is by a stranger who advances his money, and those where it is by the plaintiff in the judgment. This distinction was sustained by this court in the case of Corwith vs. The State Bank of Illinois, ante, p. 289, where we held that the reversal of the judgment, which was a mere personal judgment, was a good reason for setting aside a sale where the plaintiff in the judgment was the purchaser. But the reason of the rule is, that the reversal of the judgment destroys the right to have the property sold at [609]*609all, and if upon the merits, it shows that the plaintiff had no claim against the defendant. It such case it is no more than just that a plaintiff who has acquired title to another’s land on the strength of such a judgment, should restore it. He has advanced nothing, and when his judgment falls, all pretense of right in him to hold the land seems to fail.

But the same reason does not exist in the case of a judgment of foreclosure where the reversal, as in this case, did not defeat the entire claim, but only reduced the amount. There a claim is still left. The mortgage itself creates a lien upon the land, and a liability to sale. If the sale in such a case is set aside, the only result is that it must be sold over again. Upon these grounds we think the principle adopted in the case of Corwith, vs. The State Bank, should not be applied to a sale on a mortgage foreclosure, where the reversal does not defeat the entire mortgage debt, even though the mortgagee be the purchaser. In such a case it should be shown that there was some unfairness in the sale, or that the property would, on a resale, bring a larger amount than the bid at the first sale.

This being the only reason for setting aside the sale, the order is reversed, with costs.

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15 Wis. 604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jesup-v-city-bank-of-racine-wis-1862.

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