Anderson v. Walsh
| Decision Date | 27 February 1923 |
| Docket Number | 22269 |
| Citation | 192 N.W. 328,109 Neb. 759 |
| Parties | ANNA L. ANDERSON, APPELLANT, v. JAMES L. WALSH ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Wheeler county: EDWIN P CLEMENTS, JUDGE. Affirmed.
AFFIRMED.
G. N Anderson and John C. Martin, for appellant.
Vail & Flory, contra.
Heard before MORRISSEY, C. J., ALDRICH, DAY and GOOD, JJ., TROUP District Judge.
Plaintiff has appealed from a decree dismissing her application for a deficiency judgment, after a judicial sale and confirmation thereof in a foreclosure action.
Plaintiff brought action against James L. Walsh, his wife, Mary E., Frank M. Gross, and his wife, Bessie A., to foreclose two mortgages which had been executed by Walsh and wife. After the execution of the mortgages, Walsh and wife conveyed the mortgaged premises by warranty deed to Frank M. Gross. Plaintiff in her petition alleged that in the warranty deed, as a part of the consideration for the land, Frank M. and Bessie A. Gross assumed and agreed to pay the debts secured by the mortgages. In the prayer of her petition plaintiff asked that all of the defendants be adjudged to pay any deficiency which might remain after applying proceeds of sale to the payment of the debts secured by the mortgages. Summons was personally served on all of the defendants, but none of them made appearance in the original action. Default decree was entered in favor of the plaintiff, which, among other things, contained a finding that Walsh and wife conveyed the lands to Frank M. and Bessie A. Gross, subject to the said mortgages which they assumed and agreed to pay, as alleged. The decree further provided: "And in case said premises do not sell for sufficient to pay the debts and costs, a deficiency judgment be given for the amounts." Thereafter an order of sale was issued and the premises were sold by the sheriff to the plaintiff for the sum of $ 750, and, after applying the proceeds of the sale to the payment of costs and amount found due, there remained a deficiency of $ 1,097.06. Plaintiff filed motion for confirmation of sale and for deficiency judgment. When this motion was called up in court, counsel for defendant Gross stated that he had no objection to the confirmation of sale provided no deficiency judgment was asked. The court then entered an order confirming the sale, and gave defendants time to make objections to the application for a deficiency judgment. The defendants Gross and wife filed objections, in which they alleged that, after the sale and before confirmation thereof, they had entered into an agreement with the plaintiff by the terms of which they agreed not to make objection to the confirmation of sale, upon the condition and agreement of the plaintiff that she would not ask for a deficiency judgment in the case, and, relying on said agreement, did not file objections to a confirmation, though the premises sold for an inadequate price. Plaintiff filed reply, in which she admitted the purchase of the land at judicial sale and that an agreement had been entered into, but that the terms of the oral agreement were entirely different from those contended for by the defendants Gross, and alleged that the right of plaintiff to a deficiency judgment had been adjudicated in the original decree, and that the order confirming the sale without objection estopped the defendants from claiming any defense to the motion, and prayer for deficiency judgment.
On a trial of the issues thus presented, the district court found that, subsequent to the sheriff's sale, an agreement was entered into between plaintiff and defendants, to the effect that defendants would refrain from filing any objections to the confirmation of said sale in consideration of plaintiff waiving and relinquishing her right to ask for a deficiency judgment in said case against defendants; that defendants relied on said agreement and did not file objections to confirmation of sale; that plaintiff purchased the land at sheriff's sale for $ 750, and that the land was at the time reasonably worth $ 1,600. The court sustained the objections and denied plaintiff a deficiency judgment.
1. The first legal proposition advanced by plaintiff for a...
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