Elliott v. Atkins

• Decision Date: 16 May 1889
• Citation: 42 N.W. 403,26 Neb. 403
• Parties: C. J. ELLIOTT ET AL., APPELLANTS, v. HENRY ATKINS ET AL., APPELLEES
• Court: Nebraska Supreme Court

42 N.W. 403

26 Neb. 403

C. J. ELLIOTT ET AL., APPELLANTS, v. HENRY ATKINS ET AL., APPELLEES

Supreme Court of Nebraska

May 16, 1889

APPEAL from the district court of Lancaster county. Heard below before CHAPMAN, J.

AFFIRMED.

Lamb Ricketts & Wilson, and J. R. Webster, for appellants.

O. P Mason, D. G. Courtnay, and J. B. Archibald, for appellees.

OPINION

MAXWELL, J.

In 1884 Luke Lavender brought an action in the district court of Lancaster county to redeem certain real estate from judicial sales. It is alleged in his petition in substance that in the year 1873 Lavender possessed a large quantity of land in and adjoining the city of Lincoln, a description of which is set out in the petition; that Lavender became indebted to many persons, and borrowed money and executed certain mortgages on portions of said real estate; and a large number of judgments were recovered against him and became liens upon his real estate; and that sales under executions issued on said judgments thereafter took place, and the land was sold to the defendants, and said sales were thereafter confirmed and deeds made to the purchasers. No fraud seems to be claimed in obtaining the judgments; but it is alleged that the defendants fraudulently prevented competition at the sales and hence were able to purchase the property for less than its value, and for less than they otherwise would have been able to do.

A trial was had on the 5th day of November, 1885, and a decree rendered giving a right of redemption as to part of the lands in controversy, the decree being: "The court finds the facts upon the issues joined in favor of the plaintiff as to those lands described as the southwest quarter of the northwest quarter, of the northeast quarter of section twenty-five, township ten north, of range six east, in Lancaster county, Nebraska, and that the plaintiff is entitled to redeem the same, and be restored to the possession thereof, upon the payment within six months next ensuing, of the sum of two hundred and thirty-four dollars, with interest thereon at the rate of seven per cent per annum from March 22, 1879, until the same is paid into court for said defendants. It is therefore ordered and adjudged and decreed that upon the payment by the plaintiff of said sum into court for the defendants within the time aforesaid, the sheriff's sale of March 22, 1879, and deed to said lands, to wit, the southwest quarter of the northwest quarter, of the northeast quarter of section twenty-five, township ten north, of range six east, in Lancaster county, Nebraska, be set aside, annulled, and held for naught, and the title to said lands be quieted in the plaintiff as against the claim or title that said defendants or either of them, and all persons holding or claiming to hold under them or either of them, may have or claim to have under and by virtue of said sale and deed; and that the defendants and each of them convey to plaintiff the right, title, and interest, by them or either of them held or claimed in and to said lands by virtue of said sale and deed; and that plaintiff have possession of said lands and execution therefor; and if in default of the plaintiff making such payment within the time aforesaid, it is ordered and adjudged and decreed that the title in and to said lands, to wit, the southwest quarter (1/4) of the northwest quarter, of the northeast quarter of section twenty-five, township ten, range six east, in Lancaster county, Nebraska, be quieted in the defendant, Martha I. Courtnay, to which defendants except. This decree, however, is not to affect the judgment or execution, lien or liens, which said defendants or either of them may have or hold on said lands."

The plaintiff excepts thereto, and the court further finds "as to the rest and residue of said lands in the petition described, the issues joined in favor of the defendants and against the plaintiff, and it is further ordered and decreed that the title in and to the rest and residue of said lands in the petition described, be quieted in the defendants; plaintiff excepts thereto."

The court further adjudges and decrees that each party, plaintiffs and defendants, pay one-half of the costs of the action, taxed at $ 80.50. "Thereupon the parties each severally pray an appeal from so much of this decree as is adverse to them; a supersedeas bond of plaintiff is fixed in the sum of $ 1,000, a bond on part of defendants is fixed in the sum of $ 500, the same severally to be filed within twenty days."

Soon after the rendition of the above judgment, Lavender and the defendants compromised the matters of difference between them, and the action was dismissed. The plaintiffs, however, asserted that under a certain contract with Lavender they had rights in the property, and insisted on prosecuting the appeal. The appeal, however, was dismissed. (See Lavender v. Atkins, 20 Neb. 206, 29 N.W. 467.)

The plaintiffs now...