Cooper v. Foss
| Decision Date | 28 May 1884 |
| Parties | MARTIN L. COOPER, PLAINTIFF IN ERROR, v. FAYETTE I. FOSS, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Saline county. Heard below before MORRIS, J.
AFFIRMED.
Hastings & McGintie, for plaintiff in error.
Misdescription. Parrat v. Neligh, 7 Neb. 458. Deficiency judgment. 2 Wash. Real Prop., 571. Marsh v. Pike, 1 Sand. Ch., 210. Carpenter v. Koons, 20 Penn. State, 222.
Dawes & Foss, for defendant in error.
Misdescription. Ohio Life Ins. Co. v. Goodin, 10 Ohio St. 557. McCreary v. Pratt, 9 Neb. 122. Deficiency judgment. Code, § 849. 2 Washburn, 571. 1 Jones on Mortgages § 478. Curtis v. Tyler, 9 Paige, 435. 4 Wait's Actions and Defenses, 579. Fenton v. Lord, 128 Mass. 466.
It appears from the record in this case, that on the 1st day of January, 1880, one James C. Chowins and Julia Chowins, his wife, made their mortgage deed to the defendant in error to secure the payment of some $ 2,500 and more, then owing to him by the said James Chowins, to and upon certain real estate described in said mortgage as follows: "All the following described real estate, situated in De Witt precinct, in Saline county, and State of Nebraska, to-wit The undivided one-half of three acres of land lying in a square form in the south-east quarter of section 15, township 5, of range 4, east of the 6th p. m., more particularly known as the Swan City mill property."
It further appears, that on the 25th day of February, 1882, the defendant in error commenced his action in the district court of Saline county for the foreclosure of the said mortgage; in which action, James C. Chowins, Martin L. Cooper, and Mary L Cooper were made defendants; the petition alleging that the said Martin L. Cooper and Mary L. Cooper had or claimed to have some interest in and to the said premises by reason of a certain deed of conveyance from the said James Chowins, together with the allegation that the same, whatsoever it might be, was inferior and subject to the lien of the said mortgage, and that in the conveyance from James Chowins and wife to Martin L. Cooper, said Martin L. Cooper assumed the payment of said notes and mortgage.
The said James C. Chowins waived the issuance of the summons in said action, and entered his personal appearance therein in writing; and summons was issued against the said Martin L. Cooper and Mary L. Cooper, and was personally served. No answer or defense was made, and the cause was tried to the court without the intervention of a jury, who found that there was due the plaintiff the sum of $ 2,891.52, and a general judgment of foreclosure and sale was entered thereon. It also appeared, that on the 20th day of April, 1882, the said Martin L. Cooper and Mary L. Cooper filed in said court their request in writing for a stay of the order of sale in the said cause. Upon the expiration of said stay, to-wit, on the sixth day of January, 1883, an order of sale was duly issued to the sheriff of said county; that said sheriff, on the tenth day of March following, filed his report in said cause showing the appraisement and sale of said premises, and that after applying all of the moneys arising from said sale properly applicable thereto there remained a deficiency of $ 1,597.90 due to the plaintiff therein.
In said order of sale, as well as the return of the sheriff, the property is described as the undivided one-half of three acres of land lying in a square form in the south-east quarter of the south-west quarter of section 15, in township 5 n., of range 4 e. of the 6th principal meridian, known as the Swan City mill property.
It also appears that on the thirteenth day of March, 1883, the said Martin L. Cooper and Mary L. Cooper filed their exceptions to the report of said sheriff and to the confirmation of the said sale; and that upon the hearing of said exceptions and of the motion of the plaintiff to confirm the said sale, the said court ordered and entered of record that, after careful examination of all the proceedings had and done in said matter, and being satisfied that the sale had been made in all respects in conformity to law and the orders of this court, it was ordered that the proceedings in the same be and the same were thereby approved and confirmed; that the sheriff conveyed to the purchaser, Fayette I. Foss, he being p...
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