George v. Pracheil

• Citation: 92 Neb. 81,137 N.W. 880
• Decision Date: 28 September 1912
• Docket Number: No. 17,033.,17,033.
• Parties: GEORGE v. PRACHEIL ET AL.
• Court: Supreme Court of Nebraska

92 Neb. 81

137 N.W. 880

GEORGE

v.PRACHEIL ET AL.

No. 17,033.

Supreme Court of Nebraska.

Sept. 28, 1912.

Syllabus by the Court.

Where a bidder at a referee's sale, shortly before the sale was closed, claimed that a railroad company owned and occupied a right of way across the tract offered, which reduced the number of acres to be conveyed, and so should reduce the aggregate of the sum to be paid, held, (1) under the evidence, that the alleged ownership and the occupation of such right of way strip by the railroad company constituted merely an easement likely to be divested under the terms of the deed if it abandoned the road or changed its track therefrom, and that the court authorized the sale of the tract as a whole, and that the purchaser could not impose terms upon the referee or make a bargain with him unauthorized by the court; (2) that, the court having authorized the sale of the tract as a whole, the purchaser took such rights only as the referee could convey to him, which included the whole tract subject to the easement of the railroad company; (3) that a bid at a referee's sale is only a proposal to buy which may be withdrawn by the bidder at any time before the crier signifies his acceptance thereof (Nebraska Loan & Trust Co. v. Hamer, 40 Neb. 281, 58 N. W. 695), but, appellant's bid in this case having been accepted without any intimation of withdrawal, he is liable at the rate per acre bid by him for the entire 80-acre tract offered for sale by the referee.

Appeal from District Court, Lincoln County; Grimes, Judge.

Action by Frederick George against Mary Pracheil and others. From a judgment for plaintiff, defendant Joseph Vrbsky appeals. Affirmed.

Bartos & Bartos, of Wilber, for appellant.

J. G. Beeler, of North Platte, for appellees.

HAMER, J.

Joseph Vrbsky was the purchaser at a referee's sale of the S. E. 1/4 of the N. W. 1/4 and the N. E. 1/4 of the S. W. 1/4 of section 34, in township 7 N., of range 4 E., of the sixth principal meridian, in Saline county. At a hearing in the district court of Lincoln county an order was made that the purchaser, Vrbsky, pay to the referee $524.60 as a balance of the purchase price of a tract of 80 acres of land sold at a public sale held by a referee under an order of the district court of Lincoln county. The court found “that said land was offered in a tract of eighty (80) acres; * * * that said Joseph Vrbsky offered therefor eighty-six ($86) dollars per acre for the tract, and that his bid was accepted; that just prior to the time that his bid was accepted, and just before the sale was closed, a question was raised by said bidder as to whether said tract contained eitghty (80) acres, and it was claimed that the railroad had a deed for 6.10 acres through said tract; that after some negotiations between the parties some understanding was arrived at, upon which the evidence is conflicting, the referee claiming that said Joseph Vrbsky was to pay eighty-six ($86) dollars per acre for eighty (80) acres, and said Joseph Vrbsky claiming that the court should determine the title by which the railroad sold its strip through said premises.” The court then found that the deed to the railroad company contains language as follows: “Do hereby grant and convey unto the said railroad company and to their successors and assigns forever the following piece or parcel of land, situate in the county of Saline, state of Nebraska, to wit: A strip of land through northeast quarter (N. E. 1/4) of the southwest quarter (S. W. 1/4) and the southeast quarter (S. E. 1/4) of the northwest quarter (N. W. 1/4) of section thirty-four (34), in township seven (7) north of range four (4) east, according to the survey and located line of said railroad company, one hundred (100) feet in width being fifty (50) feet on either side of the center line of the road of said company as located or to be located by the engineer of the said railroad company for the construction of the same from the city of Omaha, in Douglas county, in said state, to such point as may be herein designated, to have and to hold the same unto the said railroad company and to their successors and assigns forever, provided that in case said railroad company do not construct their road through said tract or shall after construction permanently abandon the route through said tract of land, then the same shall revert to and become reinvested in the said grantors, heirs and assigns.” It is further found that Vrbsky paid to the referee on the day of sale $1,061.65, and that he has since paid $5,293.75 making a total of $6,355.04, and that these payments were made with the knowledge upon the part of the said Vrbsky that the said railroad crossed said land and with the knowledge of the provisions of said deed. The court further found that the said railroad company took only an easement in the land occupied by its railroad, and that the intention of the grantors and of the grantee, the Omaha & Northwestern Railroad Company, was that only an easement should be created by the deed, and that such easement should be used for the construction of this line of railroad through said lands and should revert to the said grantors, their heirs and assigns, if said railroad did not construct their road through said tract, or should after construction permanently abandon the road. The court then found it unnecessary to pass upon the question as to just what arrangements were made between the referee and said Vrbsky as the above finding of the court as to the said strip of land through said described premises being an easement made said Vrbsky liable for the payment of $86 per acre making the total sum to be paid $6,880 upon which said Vrbsky had paid $6,355.40, leaving a balance unpaid of $524.60. The court then adjudged that said Vrbsky pay to the referee the said remainder unpaid with interest at 7 per cent., and that the referee deliver to him upon such payment a deed for the premises.

This case is an appeal from this order of the district court. There is no notice to be taken of the original partition suit, and there is no question of the regularity of the proceedings in any way. There is only the question as to whether the purchaser shall pay for the 6.10 acres of land occupied by the railroad track. It is said in appellant's brief that “it must be conceded, we think, that, if said deed is merely an easement, then the appellant herein, being charged as the court has found with notice thereof, must fail in his appeal.” Counsel cite numerous cases showing that the violation by the grantee of a condition touching forfeiture causes the land to revert to the original grantor or his heirs. The court will look at the entire deed for the purpose of ascertaining what the grantor and grantee intended. The use of the word “forever” in connection with the provision that, if the railroad company did not construct its line through the tract and should abandon its route, then that the same shall revert to and become reinvested in the grantors and their heirs and assigns, is not inconsistent with the purchaser's contention that the grantor permanently disposed of his interest. The intention of the grantor and grantee would seem to be that if the road is not built that the title shall revert, or, if it is abandoned, then that the title shall revert. The conveyance is apparently for the purpose only of enabling the road to occupy the strip for right of way alone, and that can give no more than an easement.

It is beyond the power of the purchaser to compel the court to try title to the land purchased by him before he buys and pays for it. The purchaser can only take such title as the referee has to give him and only so much land as the referee has to sell, and, when the referee sold the tract described, he did not warrant title to the strip. It was the duty of the referee to sell that strip along with the other land included in the government subdivisions which he was selling. A sale made by a referee is a sale by the court. It is analogous to a sale made under the direction of the court in a case of mortgage foreclosure under order of sale, or a sale of real estate under an execution. The action of the referee or of the sheriff or other administrative officer of the court is simply a sale of what there is to offer, and no more and no less. We do not believe that the purchaser may impose terms or conditions of any kind upon the referee or the sheriff or other person authorized to conduct the sale. If so, then the purchaser can substitute the condition of his bid for the conditions of the decree.

In the case of Nebraska Loan & Trust Co. v. Hamer, 40 Neb. 281, 58 N. W. 695, it was held (a) that a judicial sale must be made in accordance with the decree of the court, and its terms cannot be changed by agreement of parties or counsel not incorporated into the record; and (b) the officer conducting the sale is not required to entertain any bids coupled with conditions not in conformity with the terms of the decree. In that case there was a proposed purchaser bidding more than the purchaser who obtained for itself the order of confirmation, but, if the bid was higher, it was “subject to all prior liens except $1,568.70.”...