Clark & Leonard Inv. Co. v. Way

• Decision Date: 16 June 1897
• Citation: 71 N.W. 1021,52 Neb. 204
• Court: Nebraska Supreme Court
• Parties: CLARK & LEONARD INV. CO. v. WAY ET AL.

52 Neb. 204

71 N.W. 1021

CLARK & LEONARD INV. CO.

v.WAY ET AL.

Supreme Court of Nebraska.

June 16, 1897.

Syllabus by the Court.

1. A purchaser at a judicial sale who, instead of paying the amount of his bid to the officer making the sale, undertakes to himself disburse it in discharging liens, does so at his peril.

2. The title of the purchaser, where there is an appeal from the order of confirmation, relates back on affirmance at least as far as that order, and he may not deduct from the amount of his bid sums which he has paid on account of taxes becoming liens on the property, and interest accruing on a senior mortgage subject to which he bought, between the time of confirmation and the time of affirmance or dismissal of appeal.

3. The holder of a lien not made a party to a foreclosure case has no standing by intervention, on motion for distribution, to ask to have the purchase money applied to the satisfaction of his lien.

4. A motion for distribution should properly be made after the fund comes into the hands of the officer making the sale, or after it is paid into court, if such be the order. If made earlier, the court may refuse to entertain it; but, if overruled on the ground that it is premature, the order should be without prejudice to a later application.

Appeal from district court, Lancaster county; Strode, Judge.

Action by the Clark & Leonard Investment Company against Palmer Way and others. Judgment for plaintiff. Defendants J. A. Hudelson and the German National Bank appeal. Modified.F. A. Boehmer and N. Rummons, for appellants.

Ricketts & Wilson, for appellee.

IRVINE, C.

The record before us presents a very curious and complicated state of facts. The transcript contains some of the affidavits used in evidence. The bill of exceptions repeats most of the pleadings. From this mass of documents we gather a statement of facts from which we eliminate, as far as practicable, the minor and less material points, in the hope that the case may be so far simplified as to render its condition intelligible.

Palmer Way and Margaret Way (whom we shall hereafter style “the Ways”) were the owners of certain property in Lancaster county. On this there was a senior mortgage of $11,000, which had been executed to the Clark & Leonard Investment Company (hereinafter styled the “Investment Company”), and by it transferred to the President and Directors of the Insurance Company of North America (hereinafter styled the “Insurance Company”), the Investment Company guarantying payment. There was a junior mortgage to Hudelson, which at the time of decree amounted to $1,999.15. It would seem that there was a judgment lien in favor of one Sheldon, junior to these mortgages, or, at least, to the Investment Company mortgage. The Ways failing to pay certain interest coupons on the first mortgage and taxes on the property, the Investment Company had paid these charges, and thereupon brought this action to foreclose for the sum so paid, the principal of the first mortgage not being due. The Ways and Hudelson were the only defendants to the action. The judgment creditor was not a party. It is said that he could not be made a party, because an appeal was pending from the judgment in the supreme court. That the judgment had been superseded does not, however, appear. A decree of foreclosure was rendered, adjudging the first lien to be in the Insurance Company, the second in the Investment Company, and the third in Hudelson; and the land was ordered sold subject to the first lien, to pay the two junior liens. No appeal was taken from this decree. It would seem, however, that a stay was taken, and on its expiration the land was sold to Hudelson for $5,400. The Ways made a motion to set aside this sale, which was overruled, and the sale confirmed. The Ways appealed to this court, where, after the case had been pending nearly a year, they dismissed the appeal. Then they filed a motion to require Hudelson to pay his bid. About the same time the German National Bank (hereinafter styled the “Bank”) appeared, apparently without any order of intervention, and filed what it calls a “Petition and Motion.” In this it is alleged, among a great many other things, that it...