First Trust Company of Lincoln v. Stenger

• Decision Date: 15 April 1936
• Docket Number: 29644
• Citation: 266 N.W. 642,130 Neb. 750
• Parties: FIRST TRUST COMPANY OF LINCOLN, TRUSTEE, APPELLANT, v. ALBERT STENGER ET AL., APPELLEES
• Court: Nebraska Supreme Court

266 N.W. 642

130 Neb. 750

FIRST TRUST COMPANY OF LINCOLN, TRUSTEE, APPELLANT, v. ALBERT STENGER ET AL., APPELLEES

No. 29644

Supreme Court of Nebraska

April 15, 1936

APPEAL from the district court for Sherman county: BRUNO O HOSTETLER, JUDGE. Reversed.

REVERSED.

Syllabus by the Court.

1. Where, as in this case, the evidence establishes that the amount of the mortgage lien on the land exceeds the value, a moratory stay must be denied.

2. Where the applicant has no valuable interest to protect, good cause is shown for a denial of an application for a moratory stay.

3. A statute will not be declared unconstitutional unless necessary for a proper disposition of the pending case.

Appeal from District Court, Sherman County; Hostetler, Judge.

Action by the First Trust Company of Lincoln, Nebraska, as trustee under paragraphs two and fourteen of the will of Charles H. Rudge, deceased, against Albert Stenger and others. From a judgment, plaintiff appeals.

Reversed and remanded

Hall, Cline & Williams and Lamont L. Stephens, for appellant.

Robert H. Mathew, contra.

Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY, PAINE and CARTER, JJ.

OPINION

DAY, J.

This is a mortgage foreclosure suit in which a decree was entered June 12, 1934. The statutory nine months' stay was taken, after which an order of sale was issued, and the property was sold to plaintiff, the highest bidder, on May 7, 1935, for $ 39,800. Thereafter, on June 11, 1935, one of the defendants made an application that all proceedings be stayed until March 1, 1937, under section 20-21,159, Comp. St. Supp. 1935, known as the mortgage moratorium law. Objections to this application were filed by the plaintiff, one of which is that the applicant has no equity in the land, and that the amount of the decree is in excess of the reasonable market value of the land. The trial court entered an order June 18, 1935, granting the application for a moratory stay.

It was stipulated by the parties at the time the matter was heard that the amount due under the decree at the time (June 11, 1935) was the sum of $ 40,191.94.

Two qualified and disinterested witnesses testified that the farm, consisting of 1,040 acres located in Sherman county Nebraska, was worth as a top price, $ 27,000. These witnesses gave cogent reasons for their valuation. Another competent witness testifying for the applicant did not place a market value as of the time of trial. He expressed the opinion that this farm had future possibilities if an irrigation development made it possible to irrigate several hundred acres. There is no evidence to indicate any probability that this land would be made irrigable. As the record is, an opinion based largely upon such a conjecture is too highly speculative to be given serious consideration in a court of justice. The other witness for the applicant, whom the record does not reveal has any qualifications as an expert witness upon the value of farm land, places the same value upon the land, conditioned, "if the ditch would happen to go through." This witness, in response to a query as to the actual worth of the land on the market, stated: "Well, that's a...