Berkley v. Lamb

• Decision Date: 11 April 1879
• Citation: 1 N.W. 320,8 Neb. 392
• Parties: EDWARD BERKLEY, APPELLANT, v. W. J. LAMB ET AL., APPELLEES.
• Court: Nebraska Supreme Court

8 Neb. 392

1 N.W. 320

EDWARD BERKLEY, APPELLANT,

v.W. J. LAMB ET AL., APPELLEES.

Supreme Court of Nebraska.

Filed April 11, 1879.

Error from Lancaster County.

Mason & Whedon, for appellant.

H. H. Blodgett, for appellee.

MAXWELL, C. J.

--In July, 1873, Lamb and Billingsley recovered a judgment against L. B. Wilkinson, for the sum of $458 in the probate court of Lancaster County, a transcript of which judgment was duly filed in the office of the clerk of the district court of that county, on the nineteenth day of November of that year. On the same day, Lamb and Billingsley sold and assigned said judgment to S. M. Boyd, who on the sixteenth day of December, 1873, assigned the same to Martin H. Brush, one of the defendants. On the fifteenth day of Jannary, 1874, Boyd and wife conveyed to Wilkinson lot ten, in block 103, in the City of Lincoln, and at the same time Wilkinson executed and delivered to his wife a quitclaim deed for the lot in question, both deeds being filed for record at the same time. On the twenty-eighth of the following March, Wilkinson and wife conveyed the premises in question to the plaintiff. In July, 1875, an execution was issued on the judgment above set forth, and levied on the lot in controversy, which was sold under said execution. In November, 1875, the plaintiff and L. B. Wilkinson filed objections to the confirmation of the sale as follows:

“And now comes the defendant and Edward Berkley and file their exceptions to the confirmation of the sale heretofore had in this case: First, that said plaintiffs, Lamb and Billingsley, recovered the judgment upon which the execution is issued on the tenth day of July, 1873; that upon the nineteenth day of November, 1873, a transcript of said judgment was filed with the county clerk of said county; that afterwards, and on the fifteenth day of January, 1874, the real estate described in the return as lot ten, in block 103, was conveyed to the defendant, L. B. Wilkinson; that on the day last aforesaid, said Wilkinson sold and conveyed said lot to Mary Wilkinson, and on the twenty-eighth day of March, 1874, Mary Wilkinson conveyed said lot to the said Edward Berkley, by deed of general warranty, and on the thirtieth day of March, 1874, L. B. Wilkinson conveyed, by quit-claim deed, all interest which he had in said premises to said Berkley; that said deed from Mary Wilkinson and from the defendant L. B. Wilkinson, were both filed for record on the thirtieth day of March, 1874, at 4:20 P. M., in the office of the county clerk of said county, and duly recorded, as will more fully appear in the deed records of said county, reference thereto being had; that the execution under which said lot ten was taken, was issued on the twenty-seventh day of July, 1875, and was the first execution issued out of this court on said judgment, and that the same was not levied on said lot ten until the twenty-seventh day of July, 1875; that at that time said Berkley was the owner of said lot, and is now the owner thereof, and for proof of these facts, reference is had to the records of this court. The said Berkley asks that said sale be set aside, as a confirmation thereof will tend to throw a cloud upon his title.” Mason and Whedon, and Edward Berkley, for defendant.

In May, 1876, a motion for the confirmation of the sale and the exceptions above set forth, came on for hearing, and were argued by counsel for the respective parties, and submitted to the court.

In September, 1876, the court rendered a judgment sustaining said exceptions, and setting aside said sale, which order and judgment still remains in full force.

In 1878, Brush caused an execution to issue on said judgment, which was levied on the lot in question, and a sale of the same being about to take place under said levy, the plaintiff filed a petition in the district court of Lancaster County, setting forth the above facts, and prayed for an injunction to restrain the sale. The defendants answered the petition of the plaintiff, alleging that at the time of the conveyance of lot ten, in block 103, in the City of Lincoln, by L. B. Wilkinson to Mary Wilkinson, they were husband and and wife, and that the conveyance was made in this state, and was made to place the property out of the reach of the creditors of L. B. Wilkinson, and that said conveyance was without consideration, and was not made at the same time the conveyance from Boyd and wife to L. B. Wilkinson. The defendants also deny that the judgment or final order setting aside the sale still remains in full force. The plaintiff, in his reply, admits that Mary Wilkinson was the wife of L. B. Wilkinson at the time of the execution of the deed, and that the entry on motion docket, as set forth in the answer, are true, and deny all other allegations of new matter. On the trial of the cause, the plaintiff introduced the motion docket, to show that the exceptions to the sale had been sustained. The defendants offered no evidence. The court found the issues in favor of the defendants, and dismissed the cause. The plaintiff appeals to this court.

It will be observed that the only ground upon which it was sought to set aside the sale in question, was that the judgment was not a lien upon the premises, and that a sale thereof would create a cloud on the title of the purchaser. Is the decision of the court upon this motion final and conclusive between the parties, no appeal being taken?

In Mayer v. Wick, 15 Ohio St. 552, the court says: “The question whether, under all the circumstances, the contract of sale ought to be rescinded, has already been adjudicated. A motion was made by Mayer to rescind the contract--to set aside the sale--and that motion was heard and decided. The powers of the court hearing the motion were plenary over the subject-matter, extending to all equitable as well as legal grounds for setting the sale aside. The parties having omitted to take measures for a review of that decision upon error, or otherwise to impeach it by direct proceeding, are concluded by the decision.”

In Paulett v. Peabody, 3 Neb. 198, the court says: “The statute, it is true, points out very clearly, certain steps which must be taken by the officer charged with the duty of making the sale, not one of which can be omitted, and in respect to which the court is given no discretion. But this enunciation of duties on the part of the sheriff is not to be considered a limitation or restriction upon the authority of the court to sell it; that in all other respects the proceedings are properly conducted, and the sale fairly made, so that neither the parties to the suit nor the purchaser at the sale shall be defrauded.”

That an order confirming or setting aside a sale is a final order, will not be denied, and under our Code may be reviewed by appeal or petition in error. If a sale is set aside for a mere irregularity in making the sale, or from a failure to comply with the requirements of the statute, such order setting aside the sale will not prevent the land being again offered under the judgment. Where, however, a sale is set aside upon the ground, raised distinctly in the motion, that the judgment was not a lien upon the land, and that no title will pass by the sale, such order, unless reversed, becomes final and conclusive upon the parties.

In the case at bar the very ground upon which the sale is set aside is, that the judgment was not a lien upon the lot in controversy. Can the plaintiff in execution disregard the order of the court and immediately offer the property again for sale? No one will contend that he can do so. As there were no special findings on the motion, the exact ground upon which the motion was sustained is not apparent, although it is reasonable to infer, that the court found that L. B. Wilkinson was not in fact the owner of the lot in question, but that said real estate was paid for and owned by Mary Wilkinson, his wife.

In the case of Colt v. Dubois, 7 Neb. 391, it was held, that the lien of a judgment attaches to all the lands and tenements of the debtor in the county where the judgment is rendered, whether held by him at the time of its rendition or subsequently acquired. We adhere to that decision. But the lien of the judgment attaches only to the interest of the debtor in the land. Filley & Hopkins v. Duncan, 1 Neb. 145;Uhl v. May, 5 id. 157; Galvay, Semple & Co. v. Meldon, 7 id. 285. And the lien can attach to no greater interest than that owned by the debtor. It is claimed that the deed from Wilkinson to his wife is void. At law, such a deed is void, but equity will sustain it when made upon a sufficient consideration, or in pursuance of a valid antenuptial agreement. Aultman, Taylor & Co. v. Obermyer, 8 Neb. 260. But as...