Bachle v. Webb
| Decision Date | 14 June 1881 |
| Citation | 9 N.W. 473,11 Neb. 423 |
| Parties | FREDERICK BACHLE, PLAINTIFF IN ERROR, v. H. P. WEBB AND OTHERS, DEFENDANTS IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Gage county. Trial below before WEAVER, J.
REVERSED AND REMANDED.
Colby & Hazlett, for plaintiff in error. Parties cannot object to confirmation of sale on ground that title of the property sold is defective. Phillips v. Dawley, 1 Neb. 322. Buckingham v. Granville Society, 2 Ohio 361. Question of title cannot be litigated on the confirmation of the sale. Herman on Executions, 433. Terrell v Anchauer, 14 Ohio 80. Bolgiano v. Cook, 19 Md 375. Todd v. Dowd's Heirs, 1 M etc., (Ky.), 281. Voorhees v. Bank, 10 Peters, 469. McCleary v Faber, 6 Pa. 476. Paine v. Sprailly, 5 Kan. 525.
Brown, Marshall & Brown, for defendants in error. Under the statute, sales upon execution or order of sale, as well as those made in pursuance of decrees, must be approved and confirmed by the court, and the deed to the purchaser at the sale must be ordered by the court. A deed made without such approval and order is not valid, and conveys no title to the purchaser. State B'k of Nebraska v. Green, 8 Neb. 299. Lessee of Curtis v. Norton, 1 Ohio 278. A purchaser at a judicial sale will not be required to complete the sale when the title is defective. Although the rule "caveat emptor" applies in the absence of fraud, after the sale has been confirmed and the deed delivered, yet if the title is defective, the purchaser will not be compelled to complete the sale if he makes objection thereto before confirmation. Rorer on Judicial Sales p. 66, Sec. 155. Ormsby v. Terry, 6 Bush (Ky.), 553. Hunting v. Walter, 33 Md. 60. Mechanics Savinys Ass'n v. O'Conner, 29 Ohio St. 651. Ritter v. Henshaw, 7 Iowa 97. Hamsmith v. Espy, 19 Iowa 444.
The plaintiff in error sued out an attachment against the property of the defendants in error, and levied on the city lot in question, as the property of one of the defendants. The ground for the attachment was that the defendants, or some of them, had fraudulently conveyed their property, or some portion of it, with intent to defraud their creditors. Judgment was rendered for the plaintiff, an order of sale issued, the lot advertised, offered for sale, and bid off by one William Lamb. At the ensuing term of said district court the said plaintiff having applied for an order confirming the said sale, the said Lamb, together with the defendants in the said original proceeding, appeared and resisted such order, and made the following points:
First. That none of the defendants named in the attachment or order of sale had any right, title, or interest whatever in the premises sold at the time the attachment was issued and levied, nor since that time, nor when the judgment was rendered, nor since that time, and that the sale, and a sheriff's deed made in pursuance thereof, would convey no title nor interest whatever in the premises to the purchaser.
Second. That long before the order of attachment issued in this cause was levied upon the premises sold, the sale of which is asked to be confirmed, all of the defendants who ever had any interest in said premises had conveyed the same by deed to third parties.
Third. The same idea is expressed in different words.
Fourth. That the certificate of the county clerk of Gage county, made and delivered by him to the sheriff as required by law, did not show all the incumbrances on said premises; but said certificate wholly failed to show that all of the defendants had parted with their title to said premises before the levying of the order of attachment issued in this cause, etc.
Whether there was any statute positively requiring the confirmation of judicial sales or not, it has always been the practice, as well in the several American states as in England, where sales of real estate were made by order or decree of a court of equity. A court of equity having once obtained jurisdiction of the subject-matter as well as of the parties, would continue it and assert it for all purposes necessary to a complete settlement of the litigation upon principles of equity and good conscience. When in the course of such litigation or settlement it became proper to sell real estate under the direction of a master, commissioner, or trustee--virtually under the direction of the court--every bidder at such sale was held to submit himself for the purposes of such sale and purchase to the jurisdiction of the court, and every question arising between different bidders, or between the court and any bidder, would be settled by the court on the same principles, and this care and oversight of the court was often extended to the compelling of a purchaser to comply with the terms of his bid, and on the other hand to relieve him therefrom in cases where from any cause it were inequitable to enforce them.
On the other hand, in the absence of a positive statute requiring it, it has never been the custom anywhere, in cases of sales made on writs of fifa or execution sales, as distinguished from judicial sales proper, to report them to the court for its approval or disapproval of the manner in which such sale has been made. But there always has been in this state, and is now in some of the other states, a statute requiring all sheriffs and coroners making sales of real estate on writs of execution or fifa to report the same to the court, etc. The provisions of our statute in reference to the duties of the court in such cases are as follows: ...
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