Gosmont v. Gloe

• Decision Date: 23 September 1898
• Citation: 55 Neb. 709,76 N.W. 424
• Parties: GOSMONT v. GLOE ET AL.
• Court: Nebraska Supreme Court

55 Neb. 709

76 N.W. 424

GOSMONT

v.GLOE ET AL.

Supreme Court of Nebraska.

Sept. 23, 1898.

Syllabus by the Court.

1. The right of the owner of real estate to redeem the same from sale under an execution or order of sale is purely statutory, and he must avail himself of the right prior to the confirmation of the sale.

2. The failure of a purchaser at a judicial sale to pay the amount of the bid prior to confirmation does not render the sale void, nor does it extend the statutory period for redemption.

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

Action by Henry Gosmont against Peter Gloe and Lizzie Gloe. Judgment for defendants, and plaintiff appeals. Affirmed.Lamb & Adams, for appellant.

Boehmer & Rummons, for appellees.

NORVAL, J.

On May 24, 1894, a decree foreclosing a real-estate mortgage was rendered in the district court of Lancaster county in a cause then pending in said court, wherein James H. Brown, trustee, was plaintiff, and Henry Gosmont was defendant. A stay of nine months was taken, and at the expiration of such stay an order of sale was issued in the case, which was delivered to the sheriff; and the premises were sold thereunder by him on April 2, 1895, to one Peter Gloe, for the sum of $3,250. The amount of the bid was not paid to the officer at the time of the purchase, nor until April 19, 1895. The sheriff made return to the court of the order of sale, reporting that he had sold the lands to Gloe for the sum stated above. On April 6, 1895, the sale was confirmed by the court, and a deed was ordered to be made by the sheriff to the purchaser for the real estate embraced within the decree. On April 19, 1895, Peter Gloe paid in cash to the sheriff the sum of $3,250,--the amount of his bid,--and the officer thereupon delivered to said purchaser a deed of said lands. On the same day, and after Gloe had paid the said amount to the sheriff, and the former was yet in the office of the latter, and while the said money was being counted by the sheriff, the attorney for Henry Gosmont stated to the officer, in the presence of Gloe, that Gosmont desired to redeem said land, and would pay the necessary money therefor to the sheriff, if he would receive and accept the same, which offer the sheriff declined. On April 23, 1895, John Menke, for and on behalf of Gosmont, tendered to Gloe the sum of $3,250, with interest to that date, and requested the execution by the latter of a quitclaim deed to Gosmont to the land. Gloe declined to either accept the money or execute the deed. Subsequently this action was instituted to redeem the premises, and from a decree adverse to the plaintiff he prosecutes an appeal.

The right of the owner of real estate to redeem the same from sale under an execution or order of sale is purely statutory, and, to entitle one to redeem, he must bring himself within the purview of the law. By section 497a of the Code of Civil Procedure, power is given to redeem from a decree of foreclosure or the lien of a levy of an execution upon real estate at any time prior to the confirmation of the sale by a court having...