Hill v. Hoover

.APPEAL IN EQUITY PROM'MILWAIIKIilE‘CIRCUIT COURT. .' The statute (Rev. Siai. ch. 98, § 65) renders 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,-required bylaw, to be published in such newspaper, admissible in evidence, a,ná prima, facie evidence, of the facts stated therein. To be admissible as evidence, such affidavit must be in strict conformity .with the Statute; must be made by the printer, or foreman of .the printer, of the newspaper in which the notice is published. The fact that the affiant, in an affidavit-of- publication of notice, is the printer, or foreman of the printer, of the newspaper in which the notice is published, is material and indispensable, and must be directly affirmed and sworn to, not- stated byway of recital. Where an affidavit of publication stated by way of recital, “ A. B. foreman, &c., being duly sworn, deposes and says, that the notice, &e., was published, &c.it was held that the affidavit was insufficient, in that the affiant did not swear that he was the foreman, &c. Where in aforeclosure suit, the affidavit of publication of notice of sale was defective in not directly stating the fact that the affiant was the foreman of the printer, or printer, it was held that this defect did not necessarily invalidate the sale, but only the order of confirmation. Where a sale of the mortgaged premises was advertised at 2 o’clock P. M., and was bid off by the solicitor of the mortgagee, for the benefit of the latter, and on the same afternoon, within about two hours after the hour fixed for sale, the defendant appeared at the place of sale, and met the solicitor of the mortgagee, and offered to pay the whole amount of the mortgage debt, interest and costs, which was refused by the solicitor, who referred the defendant to the mortgagee, and immediately proceeded to file report of sale and procure confirmation thereof; Held, that the sale should stand. As to surprise, opening of sales, &u, &c., see case. Smith, J., dissenting.

The appellee and complainant below, filed a bill of foreclosure in tbe Circuit Court of Milwaukee county, on a note given, by defendants, Ebenezer B. Nelson and William Nelson, and on a mortgage executed by tbe Nelsons, on tbe thirteenth day of June, 1855,' and- a- subpoena was1 issued- returnable on - the twenty-seventh day of June, 1855. The subpoena was served oh the fifteenth-day' of June, on'Edward B.-Nelson and William Nelson, and returned on the'15th; On the 2d of July an order was entered requiring Ebenezer B. Nelson and William Nelson to plead, answer or demur by the-2d day-of August,-A. D. 1855. On the 26th of July, 1855, a subpoena was issued for appellant, returnable "August-7th;-1855 ;■ which was served om the-'-27th of July; 1855, and-returned on the same day. On the 7th of August, 1855, an order taking the- bill--as confessed by Ebenezer B. Nelson -and William Nelson, was entered. The bill was amended by making the appellant'a- party, and on the 8th of August, 1855, an' order was entered -requiring the appellant to answer by the 8 th of' September. On the 10th of September, an order was entered taking the-bill- a's confessed by appellant. On the 19th of September, 1855, the-Usual decree of sale was inade for $1,089.44,-and $30 'solicitor’s fees, directing the sale of the mortgaged premises, to wit; lot seven (7), in block seventy-four (74), in the Fourth Ward- of the City of Milwaukee. On the Sd day of November,'A. D. 1855, the sheriff filed his report of sale, setting forth that:'he- sold the premises on the'3d day of November, 1855, after having advertised previous to the sale at least once in each-week, for 'Six successive weeks} to Jerome R. Brigham, for $1,138.06, the same being -the amount of the' decree and'costs. And on the same day, the'3d of November, an order'of confirmation was made. -On the 7th of November, the appellant filed his motion as-follows: “And'now comes the-said' Hoover, one of the: defendants in said cause, by Brown' & Ogden, his solicitors,' and moves the court that the order of confirmation and sale, in the above entitled cause, be set aside, and that he be permitted to pay- the amount of said decree; interest and costs (which amount the said Hoover is ready, and now Offers to pay),- for'the reasons-following, to wit; “1st. Because the proceedings in said cause were irregular, and the notice of sale was insufficient. “ 2d. Because no notice was served upon the said Hoover of any of the proceedings in! said" cause. “ 3d. On account of surprise, and for other causes shown in his affidavit herewith filed. “4th. For the reason that said property described in said bill, is worth greatly more than the amount for which it was sold, to wit: four thousand dollars.” ■ ■ ■ Which was based upon the following affidavit: [Venue, éc.] “Jacob A. Hoover, being duly sworn, deposeth and saith, that on or about the 1st day of August, 1855, he was served with a subpoena in the above entitled, cause, and shortly afterwards called upon the complainant, and informed said complainant that he was the owner of said property described in the bill of complaint in said cause, to .wit:, lot No. 7, in block No. 74, in the Fourth Ward of the city of Milwaukee; that he was surprised, considering their relations, that the mortgage should have been foreclosed without notice to himself (said affiant), and that he was ready to pay up and settle the matter; but, claimed that, considering the circumstances, he (said Hill) ought not to require more than the one-half of - the solicitor’s fees secured by the mortgage, as affiant had always been ready to pay. ■ And affiant further states that said Hill said this affiant must pay the costs, but he (said Hill) was then going east, and this affiant could fix up matters after his return. This affiant further says that said 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 said Hill stated that he was going east as aforesaid; that this affiant has from that time always been ready and willing to pay the amount of said, mortgage, costs and interest, and understood that said Hill desired that it should be settled as aforesaid after his return, and that no advantage of this affiant should be taken for that reason; that this affiant did not afterwards see the said Hill, except in a buggy passing, until after the sale made in said cause; that, relying on the understanding aforesaid, and on his declared wish to pay, this affiant did not employ a lawyer, nor watch said proceedings 'in said court, and was utterly ignorant of the order to answer the decree and the publication of notice of sale until after said sale; that a few moments after the sale he was informed by Mr. Bade of the fact, and immediately proceeded to Wells and Brigham’s office, and Mr. Wells told him that said Brigham attended to the matter, and was then at the conrt-house, whither ihis affiant forthwith proceeded, and arrived there within from one-half to one honr of the said sale (as affiant is informed), and finding said Brigham there, offered to pay the amount of the decree, interest, costs, &c., being the amount bid for said premises on said sale; that the said Brigham replied that he had bid in the premises in his own name, but for the benefit of said Hill, and presumed there would be no difficulty, but he must first see said Hill; that this affiant went, on the Monday following, and saw said Hill and made the same offer to pay, and requested that said property might be restored, when said Hill replied he could not answer then, but would answer in the afternoon; that said affiant endeavored to find said Hill in the afternoon of that day, but did not succeed — this affiant believing that he purposely kept out of the way; that on said Monday said Brigham told this affiant that he had already conveyed to said Hill, but subsequently informed me that he made the statement for the purpose of forcing said Hill to take the responsibility; that on Tuesday evening following, this affiant succeeded in finding said Hill again, when he informed this affiant that he could do nothing then, but would see; and this affiant further saith that he is the purchaser of said premises from said Nelson, and that they are, and were at the time of said sale under said decree, worth $4,000; that he is informed that in the return of the said subpoena to himself (the same having been served on about the 1st day of August, aforesaid), and in taking orders and in publication, the shortest legal time was allowed, and no time elapsing between the different steps, the whole thing was forced through with extraordinary celerity; that the first publication of notice of sale was even on the same day with the decree, and that said decree was not taken upon any regular call of the chancery docket, but during the trial of jury causes. And this affiant further shows that his delay in payment of said sums, and his neglect to watch the said case in court, were owing to his reli-anee upon tbe good faitb of said Hill; that be .always bas been ready and willing as aforesaid, and is now ready and willing to pay tbe amount of tbe mortgage, interest and costs,, and that by said decree and sale in said cause lie bas been .taken by surprise, and is greatly wronged and injured in the premises.” Sworn, &c. On tbe 7tb of November tbe following order, .was made:— “ November 7th, 1855. “ On reading and filing tbe affidavit: of .the defendant Hoover, and tbe motion of said defendant, by Brown & Ogden, bis solicitors, it is ordered by tbe court, that .the order of., confirmation entered in tbis cause be and is hereby vacated and set aside, and that tbe parties bave. leave to be beard, at a future day.” Afterwards tbe following affidavits were presented:— “ Jerome B. Brigbam, being duly sworn, says.tbat be is a solicitor in tbis cause; that be was present at tbe interview between tbe complainant Hill and defendant Hoover, spoken of. in tbe affidavit of Hill, and that in that conversation Mr.,Hoover inquired of tbis deponent tbe probable time it would take to get a decree against him, said Hoover, in tbis cause, for tbe purpose, as tbis deponent then understood, of determining whether it was better to pay up at that time or to let it run till be was compelled to pay by decree. This deponent then informed said Hoover that there would probably be a decree in September following, and otherwise generally stated to said Hoover the time that would probably be required for tbe several steps before sale as nearly as be could, which tbis deponent believes did not vary much from the time actually, taken.” Sworn, &c. “ Joseph F. Hill, being duly sworn, deposes and says, that at tbe request of his brother, tbe complainant in the above entitled cause, during tbe week ending August 11th last, he went once or twice to tbe mills of said defendant Hoover to urge upon him a settlement of tbe matter on which tbe above suit was brought: that on Saturday forenoon, as early as 10 o’clock as deponent believes, tbis deponent found said Hoover, and said Hoover agreed to meet tbe complainant in tbis cause at tbe office of Wells & Brigbam, at two o’clock of tbat afternoon, Saturday, August 11th last, to close up tbe matter. Said Hoover at tbat time stated to tbis deponent tbat he had no money with which to pay the amount that day; and this deponent fold said Hoover that he could give his check, dated in advance, which could be used by the complainant, who wanted to start east the next day, or early the day after.” Sworn, &c. “ Horatio Hill, being sworn, says that he is the complainant in the above entitled cause lately pending in said court; that in the afternoon of Tuesday or Wednesday, August 7th or 8th last, he met Mr. Hoover, one of the said defendants, at the Cold Spring House a short distance out of the.city of Milwaukee, and had a conversation with him, said Hoover, relative to the above entitled cause which was then pending. He, Hoover, said to this deponent that he-was willing to pay up the amount due on the mortgage to foreclose which said suit had been brought; and that he, Hoover, would the next day come down to the office of this deponent and pay and settle up the matter, to which arrangement this deponent was most anxious to accede, as this deponent was at that time in need of the money; and said Hoover stated that he had no desire to put this deponent to any trouble in the matter', and wished himself to avoid costs. This deponent further says, that said Hoover did not come to the office of this deponent as he had agreed to do, and this deponent being anxious to obtain tbe money sent his brother, J. E. Hill, to find said Hoover and urge upon him to come down and settle as he had proposed; that his brother failed to find said Hoover until tbe Saturday following, as he informed this deponent: but as he informed this deponent, did on that day in the forenoon find Mr. Hoover and obtain from him, said Hoover, a promise to meet this deponent for a settlement, at the office of Wells & Brigham, who were the solicitors of this deponent in the matter, at 2 o’clock of that afternoon. And this deponent further says, that agreeably to said appointment, be met said Hoover at tbe office of Wells & Brigbam, on Saturday, August lltb last, at just about tbe bour of two in tbe afternoon. Tbis deponent further says that bis recollection of tbe time of tbe meeting is clear and undoubted; that said Hoover proposed to settle by paying tbe amount of tbe note secured by tbe mortgage and one-half of tbe costs; that tbis deponent told said Hoover that be, tbis deponent, must have tbe whole amount of tbe note and tbe costs, and refused to settle on any other terms. Said Hoover then said that money was worth twelve per cent, to him, and that be, said Hoover, believed that be could make as much on the money as tbe costs would be if be let tbe suit -go on, or words to that effect. Said Hoover then afterwards said that be bad not tbe money with which be could pay tbe note then, and be should be obliged to see if be could raise it. This deponent then stated to said Hoover, that be, tbis deponent, was to start for Buffalo tbe next day or early tbe day after, and that it must be fixed that day (Saturday) to be of any use to him, deponent. Said Hoover said that that was impossible, and that tbe matter must be left till tbe return of tbis deponent, and so tbe conference ended; and tbis deponent went away with tbe impression, from tbe conversation, that said Hoover chose to keep tbe money till a decree could be obtained and pay tbe extra costs, and directed bis (tbis deponent’s solicitors) to press tbe suit as fast as possible, that be, tbis deponent, might get bis money as soon as it could be bad. Tbis deponent further says, that be returned from Buffalo in September last, and has since been all tbe time in and about tbe city of Milwaukee; that be has frequently since seen said Hoover in tbe streets, but has never received from him any proposition to pay tbe amount due on said note (which with bis costs and reasonable expenses, tbis deponent would have been glad at any time to have received), until after tbe sale of tbe premises mortgaged under tbe decree of tbe court, and tbe confirmation of such sale and a deed of tbe property. Tbis deponent further states, that be has paid besides and in addition to tbe taxed costs in tbe suit, tbe sum of fifty dollars to bis solicitors for their services, and tbe sura of one dollar and fifty cents for record of sheriff1’s deed and of deed from Brigham to this deponent. “This deponent further says, that he is advised and believes that the foreclosure above entitled was conducted with no celerity beyond what is prescribed by statute, and the rules of chancery proceedings in this court, although this deponent says that it was his own intention, and he supposes that of his solicitor, to enforce payment of the amount secured by mortgage and the costs thereon, at the earliest possible day, this deponent being especially instigated thereto by the determination understood to have been expressed by said Hoover at the interview before mentioned, to leave this deponent to his regular course of proceeding in chancery to obtain his money, he, said Hoover, choosing to pay costs rather than lose the use of his money by a settlement at that time. This deponent further says, that it is the general understanding and report among men who did business with the late firm of Nelson át^Co., and this deponent himself fully believes, that said defendant Hoover was a partner in said firm of Nelson & Co., and this deponent believes, though of this he has no certain knowledge, that said Hoover acquired his title to the lot in question in this cause by means of and through his position as such partner of the other defendant, Nelson; and this deponent further states, that before the failure and breaking up in business of said firm of Nelson & Co., they were indebted to this deponent in the sum of four hundred 50-100 dollars for money lent; for which sum, and interest on the same, amounting to four hundred and twelve dollars or thereabouts, they gave their note, signed Nelsons & Co., which note this deponent still holds wholly unpaid and due. And this deponent further states, that although he is advised and believes his own title to the lot in question to be absolute and perfect; still, in consideration of the circumstances, he has felt willing to make a fair settlement of the whole matter with said Hoover, and has offered to said Hoover, through his attorney, to convey said lot to said Hoover, upon his, said Hoover’s, paying to this deponent the full amount of said decree and all his, said deponent’s, expenses about the matter above stated, and also the amount due on said note of Nelsons & Go.j which offer said Hoover through, his attorney declined to, accept.” Sworn, &c. And on the 22dof November, the motion: having been argued, .the following order was made: “ November 12 th, 1855. “ And now come the parties by their solicitors. Thereupon it is ordered by the court that the said order of November 7th, 1855, entered in this cause be and is hereby vacated and set aside, the same having been made in lieu of an injunction, same time affidavits of H. Hill, J. E. Hill, and J. R. Brigham filed, and the said motion to set aside sale and the confirmation, thereof in this cause, coming on to be heard, and being argued and submitted, is overruled and denied.” And from the last-mentioned order the appellant appeals. It should be further stated, that the affidavit of publication of the notice of sale, purported by way of recital, that it was made by the foreman of the printing office where it was published, but there was no direct averment in the affidavit that the affiant was foreman, nor was that fact directly sworn to, nor was there any other evidence of that fact. This case is stated at length, as well as the briefs and points of counsel, because it is deemed One of sufficient importance, to warrant it. Waldo & Brigham, for the complainant and appellee, made the following points: The appellant must rely, to sustain his motion to set aside the order of confirmation in this case, on one or more of three grounds: ••1. Irregularity of proceedings, shown by the record. 2. Surprise or fraud shown by the proof. 3. Inadequacy of price. As'to the first ground, the printed case shows that every step in the cause was taken in its proper order, and had its full time, and no irregularity is-claimed by the appellant, except this: that tbe printer’s affidavit shows that tbe notice of sale was first pub* fished on tbe day of tbe decree. This would be no irregularity if it were true, but tbe printer’s affidavit don’t show it. The affidavit states, that a copy of tbe notice was published for six weeks next preceding tbe day of sale, according to the decree, and tbe only ground for tbe statement made in tbe printed case is, that at tbe bottom of a printed copy of the notice attached to tbe affidavit, are certain printers’ marks or abbreviations, intelligible to tbe trade only, and among them are tbe words and figures u Sep. 19,” wbicb it is absurdly claimed, are a part of tbe tbe printer’s affidavit, and are tbe date of tbe publication of tbe notice. Now, these figures are no part of either tbe notice or tbe affidavit, nor are we called upon to explain, them. They may signify tbe date of tbe-reception of tbe notice at tbe printing office, or they may mean something else, or they may. be wholly an error; certainly they can’t signify tbe date of the publication of tbe notice, since tbe notice itself bears date Sept, 19, and tbe “ News,” in wbicb it was published, is a morning paper, and could not have published tbe notice until tbe 20th. .But it matters not what that date signifies, for counting back from., the day of sale, there .were more than six weeks of time immediately before tbe day of sale, without counting either tbe 19th or 20th, and tbe printer swears to tbe publication. Tbe fact that tbe confirmation was on tbe same day with tbe sale, is no irregularity, and in this case is explained by tbe fact, that Saturday, the day of tbe sale, was tbe last day of tbe term of court. Tbe sale was reported, found to be regular, and confirmed as it should have been. As to tbe second ground, surprise or.fraudulent misrepresentation on tbe part of tbe complainant, there is none shown by tbe proofs. Tbe only direct charge of surprise is Hoover’s statement, that be told Hill that, considering their relations, be (Hoover) was surprised that Hill bad commenced suit against him. This charge is not considered very grave, “ considering their relations /” Taking Hoover’s account of tbe matter alone, drawn up by bis solicitor for tbe very purpose of this case, no surprise, or fraud, or other ground for setting aside this decree is shown. Taking the statement as fully true, without any explanation or contradiction, it is simply this: that he found that Hill had commenced foreclosure for the purchase money of a lot which he (Hoover) had bought; that he met Hill (he omits to say that Hill sent to him) and told him that he (Hoover) was surprised, &c.; that then he (Hoover).offered to settle by paying the debt and half the costs, which was refused; that then Hoover proposed to settle on the Monday following (it being after lank hours, Hoover states), which also Hill refused, as he was to go east that day, and Hoover could fix up matters after Hill’s return ; that Hoover so relied on Hill’s desire to settle matters after his return from the east, that he (Hoover) paid no further attention to either the suit or his debt, even after he knew of Hill’s return, and so his property was sold to pay his debt as the law provides. Taking then, Hoover’s own statement as a full and true account of the whole matter, the only ground that he has to stand on is, that although he failed to make a settlement with Hill, at their first meeting, still he was so fully persuaded that he should be able to make terms with Hill, after Hill’s return from the east, that he paid no further attention to the matter, and neither tried to settle with Hill, nor paid the money into court, and now complains of surprise that he suffered by it. But Hoover’s account, though in many particulars true, is by no means full. To complete the story, we have also the affidavits of J. F. Hill, of Hill the complainant, and of Brigham, which show that Hill was, from the beginning, most anxious to have Hoover pay up, and let proceedings be stopped, as he well might be, 'as the mortgage bore only seven per cent, interest; that Hill sent more than once to get Hoover to meet him; that Hoover’s objection that he could not pay on the day Hill was most anxious to have the thing closed, because he had no money in bank, was met by the offer on the part of Hill, to take his check dated ahead; that a meeting was had between Hoover and Hill; that it was not after bank hours; that Hoover, instead of offering to pay up, when he found that Hill was anxious,tried to make terms with him, and offered to settle, if Hill would stand half the costs, and when that failed, coolly told Hill that he thought the nse of the money would he worth more to him (Hoover), than the extra costs he would incur hy not paying till he was forced to ; that to make himself sure about the point, he inquired, and was told the time that the different steps would take before the money could be compelled''of him; that he only proposed to settle the matter on the next Monday, when he found that on Monday, Hill could not be with him, and that the conference ended with no arrangement nor expectation of any settlement except by due course of law. These proofs show no surprise in this matter, on the part of Hoover, and no misrepresentation, fraudulent or otherwise, on the part of Hill, showing nothing but a hard man overreaching himself. If Hoover did understand that he could settle the the matter after Hill’s return, why didn’t he do it ? Hoover had been told when the decree would be taken, and when the sale would be; he knew that Hill was back. Here was no surprise ; nothing but neglect, at first to the injury of Hill, and finally to the cost of Hoover. The only ground, then, for setting aside the decree of confirmation in this case, is inadequacy of price, and mere inadequacy of price. Hoover swears that the lot is worth $4,000, and it sold for less than $2,000. Will this court set aside a decree confirming a sale regularly made, for inadequacy of price alone ? No such case can be found in the books, but the authorities are uniformly and strongly the other way. The English practice of opening sales upon an advance bid, is not recognized in this country, but the English rule as to opening sale after confirmation, is the rule in this country in opening sales before confirmation. 2 Dan. Ghan. Prac. 1464, note and cases cited ; 1 Barb. Ghan. Prac. 637. The court will not interfere for inadequacy of price.merely.' Morice vs. Bishop of Durham, 11 Vesey, 57; White vs. Wilson, 14 Vesey, 152 ; Williamson vs. Dale, 3 John. Gh. 290; Andrews vs. Scotton, 2 Bland's Gh. Rep. 671; Gardiner vs. Schermerhorn, 1 Clarice, 101; Francis vs. Ohurch, 1 Olarhe, 475 ; Strong vs. Caiton, 1 Wis. 470. Courts will not interfere to • set aside a- sale - regularly made, except in case of fraud or of surprise generated by conduct of party having the benefit of the purchase, or of the officer making the sale, and in case of hardship to minors and sureties. Williamson vs. Dak, 3 John. Oh. R. 290 ; Duncan vs. Dodd, 2 Paige, 100 ; Requa vs. Rea, 2 Paige, 389 ; Collier vs. Whipple,- 13 Wend. 226; Tripp vs. Cook, 26 Wend. 143; Francis vs. Ohurch, 1 Clarice, 475. The Court will not set aside a sale to relieve a party from the consequences of his own neglect ■ or inattention -merely, where there is no fraud or misrepresentation on the part of the party benefited. Duncan vs. Dodd, 2 Paige, 100; Tripp vs.. Cook, 26 Wend. 143; Francis vs. Church, 1 Clarke, 475; Young vs. Teague, 1 Bailey's Fq. R. 15; Am. Ins. Co. vs-. Oakley, 2 Paige, 259. Applications for a re-sale are in the favor of the court, and will not be granted to deprive a creditor of an advantage which he has gained by his diligence, where there has been no improper practice. Cardiner vs. Schermerhorn, 1 Clarke, 101; Farnham vs. Colton et al:, 1 Clarke, 35. After confirmation, sale cannot be set aside except upon grounds of ordinary equitable jurisdiction, and -which would authorize interference in any other case. Henderson vs. Lowry, 5 Yerger, 240; Young vs. Teague, 1 Bailey's Fq. 15. When title has vested by decree of court, it cannot be disturbed on mere motion. Parker vs. Kane, decided at the last term of this court. .But if the court chooses; to inquire into the particular equities of this case to decide this motion, what is there to. justify the setting aside the sale here? Here is no misrepresentation by either the party or the officer; no ignorance of the situation of things, but Tull information from actual inquiry ; no surprise to be remedied; no infancy to be protected against carelessness of guardians ; no unfortunate surety bound by this decree to pay for another’s default, and to- pay that which should be made out of the land ; nothing here but simple neglect of Hoover to pay for his land according to his promise, and refusal to do it till compelled by la.w, then an accidental-forgetfulness of tbe, day of.sale and a sale of his.property to pay.Ms debt. ..-This for tbe defendant. The complainant, on his part, by -his'- diligence, secures his, debt, and also an. otherwise desperate claim against the same parties. -Does equity require that tMs safer should be set aside? The principles governing this, case are so-fully discussed and determined in the case of Marshal-M. Strong vs. James Oatton-il Wiscorisin Reports, 471), that we deem it unnecessary fully to cite the authorities bearing upon the points made. ■ , Jacob A. Hoover purchased a-piece of property worth-about $4,000, subject to the mortgage on which .this suit- is brought. Hill, the appellee,-files his bill without. making Hoover: a party, but subsequently amended his bill, and- caused process to be served upon Hooverq-the mortgaged premises were subsequently sold for about one-fourth of their value, and the sale confirmed within an hour thereafter; • ..They Were bid in- the name of Brigham, one of-the solicitors, for the benefit of Hill, ■ and subsequently conveyed -to Hill. Hoover, within three-or foundays after the sale, filed his-motion to set aside the sale,- and for liberty to pay the'decree,- costs, &c., and redeem-the landv = -In addition, Hoover filed his affidavit, setting forth certain facts: going to show that the sale..took place im fraud of an agreement "between himself and the said Hill, and that it was a'-surprise upon himself. : ¿ To the extent'Of the'agreement;-and in some other particulars, Hoover is -contradicted by the affidavits of Hill, his brother, and one of his solicitors, but from the record and--all the - affidavits, we find- the following facts as undisputed: ' 1st. That there was no moral-or legal Obligation on the part of Hoover-to pay the mortgage, except so far as the preservation of 'the property -to himself might require it. - "2d. That before the- suit to foreclose-the mortgage, he had neverrbeen requested to pay the mortgage, nor was he even a party to tbe suit in tbe first instance, but bis first notice of tbe proceeding or of a demand, was a subpoena served upon bim. on tbe 27 th day of July. 3d. That immediately after tbe service of tbe subpoena, be was notified by the brother of complainant of the claim, and met the complainant by appointment, and.offered to pay the amount of the decree and costs, but claiming that tbe friendly relations between himself and the complainant, entitled him to a notice before suit, insisted that he ought not to pay more than one-half of the attorney’s fees, which being declined by Hill, Hoover stated that as it was the afternoon of Saturday, he could not raise tbe money until Monday, at which time he would pay; that Hill told Hoover that he was going east on Monday morning ; that Hill did go east on Monday, and Hoover did not see bim to speak with again until after the sale complained of. áth. That the complainant and his solicitors knew that Hoover did not intend to let the property be sold, but did intend to pay tbe mortgage and costs before sale, and they did-not doubt the sincerity of the declaration of Hoover of such intention. 5th. That, knowing this intention, and that on account of such intention Hoover employed no lawyer to watch the proceedings, Hill and his solicitors hurried forward the case with most unusual diligence, — with a diligence commendable to his solicitors, but still extraordinary ; and aided by circumstances, procured a decree and went to a sale in a time unexampled in the history of judicial proceedings in Wisconsin — a time within which Hoover could not have expected that such sale could take place, and, therefore, was not on his guard; that tbe subpoena was served on tbe twenty-seventh day of July, tbe order to answer was entered on tbe eighth day of August; on the tenth of September the order taking the bill as confessed was entered; on the nineteenth day of September, or about the first day of court, a decree of sale was entered, and the advertisement of tbe printer has tbe printer’s mark showing tbe publication of tbe notice of sale to have been tbe same day (in which case, as tbe “News”,is a morning paper, it must have been actually printed before the decree). On the 3d day of November, at 2 o’clock, the sale took place, and on tbe same afternoon tbe report of sale was made and confirmed. 6tb. That while Hill and bis solicitors were thus hastening tbe proceedings to a sale, knowing all tbe while that Hoover intended to pay before tbe sale, Hill saw Hoover several times (Hill riding), when be might have spoken to him, or asked him for tbe money, or notified him of tbe proceedings, but passed without uttering a word of warning (see affidavit of Hill) that the' sale was advertised for two o’clock; and that before three, Hoover having by mere accident beard of tbe sale, went to tbe place designated and offered to Mr. Brigham, in whose name tbe bid was made, to pay decree, costs, &c.; that Brigham referred him to Hill, and immediately afterwards, on tbe same day, without notice to Hoover, or warning of such intention, and after tbe offer to pay, and tbe reference to Hill for an answer, procured a report from tbe sheriff, and a decree of confirmation from the court; that Hill amused Hoover with evasive answers for three or four days, at tbe expiration of which time Hoover made the application in question; that Hoover was ignorant of tbe time of sale, and Brigham was the only bidder. 7th. That from the time of service of the subpoena until the confirmation of the report of sale, Hoover had no notice of any of the proceedings in court; that tbe decree was not taken upon a call of the chancery docket, and was founded upon ex parte testimony, including as well solicitor’s fees as tbe amount of tbe mortgage and interest. 8th. Hoover states in his affidavit that it was tbe understanding of himself and Hill, that be should pay tbe amount when Hill should return from tbe east; that Hill was gone some time, and although passing him (Hill being in a buggy), be, Hoover, bad no opportunity of speaking to him until after tbe sale, and that be did neither forthwith pay up, or watch tbe proceedings, from a supposition that be should be called upon for the money whenever it was wanted, and from a reliance on tbe good- faith and honor of Hill, with whom he bad been on terms of intimacy and friendship; and that sale took place in violation of their understanding. Brigham, on the contrary, states that he told Hoover bow rapidly be could urge forward tbe suit, aud bow long it would be before a decree could be obtained, but Hoover cbose to run tbe risk. While we do not doubt but that tbe statement of Brigbam is sincere and according to bis recollection of tbe facts, all tbe circumstances of tbe case show that Hoover could not so bave understood bim. It is certain that Hoover intended to pay ; it is certain that be did not design to lose property worth $4,000 for 1,000 dollars ; it is certain that be did not mean to let tbe property be sold; it is certain that be did not know of tbe time of sale until after it took place, and was greatly surprised at it, hurrying to tbe place forthwith, and within a few moments after tbe sale, offering to pay up decree and costs ; it is certain that Hill knew of bis intention to pay — had an opportunity to ask bim for tbe money or notify bim of tbe proceedings, and yet urged forward tbe sale, and while not declining tbe offer to pay up, and during tbe pen-dency of tbe offer, took a decree of confirmation secretly from Hoover, and thus endeavored to get and bold bis property at a price one-quarter of its value. While tbe affidavits for tbe complainant are undoubtedly made in good faith, all tbe circumstances of tbe case corroborate tbe oath of Hoover, and show that whatever was said, be has stated what be at least understood to be tbe truth. 9th. This maks out a far stronger case than that in tbe 1st Wisconsin, and yet tbe learned judge below, while be conceded that in justice, and by tbe general chancery practice, tbe sale should be set aside, cast tbe odium of tbe injustice done, on that decision, and refused tbe application. ■ We are willing to bave tbe motion abide by tbe principles established by tbe Supreme Court in that case, and for that reason content ourselves by referring to that decision and tbe authorities there cited. Strong vs. Cotton, 1 Wisconsin, 471; 2 Dan. Ch. Practice, 923; McCulloch vs. CaTbalch, 3 Maddock, 314; Thornhill vs. Thornhill, 2 J.&W. 347; Tyndale vs. Warre, Jac. 525 ; Lefroy vs. Lefroy, 2 Russell, 606; Regnay vs. Rey, 2 Paige, 341; Collier vs. Whipple, 13 Wend. 226; 3 Vesey, 170; 8 Paige, 337; 9 id. 259 ; Sumner vs. Charlton, 5 Vesey, 655. In tbis instance tbe order of confirmation should make no difference, inasmuch as the offer to pay was made before confirmation, without notice, on the same afternoon with the sale, and while the offer was neither accepted or rejected by Hill. 10th. We call the attention of the court to the fact that all the orders were taken without notice; that the decree was not taken on the call of the chancery docket, and also to the insufficiency of the affidavits of publication after the notice of sale.