Am. Inv. Co. v. McGregor

Citation48 Neb. 779,67 N.W. 785
PartiesAMERICAN INV. CO. v. MCGREGOR.
Decision Date03 June 1896
CourtSupreme Court of Nebraska
OPINION TEXT STARTS HERE
Syllabus by the Court.

1. That appraisers added together the valuations of pieces of property of which a decree of foreclosure had been rendered and order of sale issued, and from the aggregate sum deducted the incumbrances, when it further appeared that each piece sold for more than two-thirds of its appraised value, held not prejudicial, and not cause for setting aside the sale.

2. In the absence from the record of anything to the contrary, the proceedings in a trial court are conclusively presumed to have been regular, and will not be disturbed.

3. “The provisions of the statute requiring the sheriff to deduct from the real value of lands levied upon the amount of the liens and incumbrances prior to that of the mortgage which the property is ordered sold to satisfy, being for the sole benefit of the plaintiff, the defendant, owner of the equity, cannot be heard to object to the confirmation of the sale because such liens and incumbrances were not deducted in making the appraisement.” Smith v. Foxworthy, 57 N. W. 994, 39 Neb. 214, followed.

4. The finding and order of the judge who confirmed a sale of real estate made under an order of sale in mortgage foreclosure proceedings, in regard to errors in the description of the real estate sold, which appeared in the appraisal or copy thereof on file in the case, examined and approved.

Appeal from district court, Cedar county; Norris, Judge.

Action by the American Investment Company against Gregor McGregor and others to foreclose a mortgage, in which there was a decree for plaintiff. From an order confirming the sale made under the decree, defendant McGregor appeals. Affirmed.A. M. Gooding and Miller & Ready, for appellant.

Wilbur F. Bryant and J. C. Robinson, for appellee.

HARRISON, J.

Gregor McGregor, defendant in an action of foreclosure of a real-estate mortgage, presents this, an appeal from an order of confirmation of a sale, made subsequent and pursuant to the decree of foreclosure, of the property included in the mortgage. The objections to the confirmation urged in the district court were as follows: (1) The property was not sold for a sum equal to two-thirds of its appraised value. (2) The property described as ‘Lots Five and Six of Block Twenty-Five’ was appraised at the sum of $275, whereas, in truth and in fact, such property is worth a sum much greater than the sum of $275, to wit, the sum of $1,500 and upwards, as shown by affidavits of record in this case. (3) The incumbrances against said property were not taken into consideration by the appraisers therein, for that the applications for certificates from the county clerk and county treasurer were not required of such officers, and gotten by the sheriff, until after such appraisement was made. (4) The interests of defendant McGregor and the other defendants herein were and are not specifically set out and appraised. (5) The return and record nowhere show the separate interests of defendant McGregor and the other defendants. (6) The court had no jurisdiction to render a decree against Lemon & McGregor, a partnership, for that such partnership was not sued, and was not served with any order or summons from this or any other court, in this case, to appear and defend, and made no voluntary or any appearance whatsoever in the case. Wherefore defendant McGregor asks that such sale be not confirmed, and for such other relief as equity may require.” We will notice the objections in the order in which they were stated and numbered in the pleading filed in the district court. Of the portions to be considered, we have just given a copy.

It is contended that the property did not sell for two-thirds of its appraised value. The sale was of lots 5 and 6 in block 25, and the west 50 feet of lots 5 and 6 in block 43, in the village of Hartington, Neb. The first-mentioned two lots were given by the appraisers the value of $1,800, and the portions of the lots in block 43 an appraised valuation of $275, making a total of $2,075; from which sum they deducted taxes in the sum of $142.44, and mortgages, $830, giving a total of liens and incumbrances of $972.44, deducting which from the $2,075, there remained the sum of $1,102.56, which was stated by the appraisers to be the real value in money of the interest of Gregor McGregor et al.” in the premises. The two lots in block 25, the return of the officer shows, were sold for $700, and the parts of lots in block 43 for $200, a total of $900,--more than two-thirds of the appraised value of $1,102.56, in the aggregate, of all the property sold. Of the record in the district court, there has been removed to this court but few of the papers,--a copy of the appraisal, the notice of sale, and proof of its publication, the return to the order of sale, the objections to confirmation, and the order confirming the sale; but, from such parts of the record as we have here, it is apparent that, of the incumbrances deducted from the total of the valuations placed by the appraisers on the lots and parts of lots, the sum of $830 was of a mortgage lien against the lots in block 25, and this sum subtracted from $1,800, at...

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