Summary
In Gratiot State Bank v. Martin (1943), 242 Wis. 254, 7 N.W.2d 863, a partition sale was ordered by the county court and an offer was made at the sale conducted by the sheriff.
Summary of this case from Estate of StrassOpinion
January 11, 1943. —
February 9, 1943.
APPEAL from an order of the county court of La Fayette county: F. E. OLSON, Judge. Reversed.
H. J. Beardsley of Darlington, attorney, and Elton S. Karrmann of Platteville of counsel, for the appellants.
For the respondent there was a brief by McDaniel, McDaniel Reinoehl of Darlington, and oral argument by C. F. McDaniel.
Partition suit. This action was commenced on September 10, 1941, for the partition of certain real property situate in La Fayette county, Wisconsin. On December 23, 1941, pursuant to order of the court duly entered, the sheriff sold the land at public auction to the plaintiff for $5,100. On December 30, 1941, the defendants appeared in the action and demanded notice of hearing upon confirmation of the sale. On February 18, 1942, it was stipulated by the parties that the price obtained on the first sale was not satisfactory; that the sale should be considered a nullity and that a resale should be had. Upon this stipulation the court ordered a resale, which was had on April 4, 1942. Upon the second sale the land was sold after competitive bidding to the defendant, Horace Martin, for $8,400. On May 5, 1942, the plaintiff served on defendants' attorney an order to show cause why the April 4, 1942, resale should not be vacated and a resale directed.
Plaintiff alleges in its petition on which the order to show cause was based that it was informed that others would pay more than $8,400; that one Roy F. Pillmore, of Illinois, was prepared to bid $9,000 on a resale. Attached to the petition is an undertaking or agreement executed by Pillmore that he would bid $9,000 on a resale. Upon the hearing plaintiff offered no testimony. The defendants offered testimony to the effect that $8,400 was a fair value of the land. This was the substance of the testimony given by a banker, a real-estate salesman, a retired farmer, and a manager of a lumber company. Upon these facts the trial court made an order declaring the second sale "void and a nullity," and ordered a resale. From that order the defendants appeal.
The question presented by this record is whether this court should now abandon the rule which has obtained here for many years that an offer or agreement to advance a bid upon a resale which is made before the sale is confirmed, not accompanied by a showing of mistake, misapprehension, or inadvertence is insufficient to sustain an order setting aside the sale ( Adams v. Haskell (1859), 10 Wis. *123; Kneeland v. Smith (1861), 13 Wis. *591; Griswold v. Barden (1911), 146 Wis. 35, 130 N.W. 952; A. J. Straus Paying Agency v. Jensen (1938), 226 Wis. 462, 277 N.W. 105); or whether we shall adopt the minority rule which is that the entire matter of confirmation rests in the discretion of the court. (See 11 A.L.R. p. 399, 417.) In this case the plaintiff makes no claim that there was any mistake, misapprehension, or inadvertence on its part.
The plaintiff contends that because it consented to the setting aside of the first sale, it is now entitled to have the defendants consent to the setting aside of the second sale. It says that such a procedure would be no more than fair. The trouble with plaintiff's position is that the defendants do not give their consent and no authorities support it. A mere expectation of favor, even if it were well founded, is not a mistake, a misapprehension, or an inadvertence.
It is considered that the long-established rule should be adhered to.
By the Court. — The order appealed from is reversed, and cause remanded with directions to confirm the sale.