Green v. State Bank of Nebraska

• Citation: 2 N.W. 228,9 Neb. 165
• Parties: JOHN H. GREEN, PLAINTIFF IN ERROR, v. THE STATE BANK OF NEBRASKA, DEFENDANT IN ERROR.
• Decision Date: 30 September 1879
• Court: Supreme Court of Nebraska

9 Neb. 165

2 N.W. 228

JOHN H. GREEN, PLAINTIFF IN ERROR,

v.THE STATE BANK OF NEBRASKA, DEFENDANT IN ERROR.

Supreme Court of Nebraska.

Filed September, 1879.

Error from the district court for Washington county.Woolworth & Munger, for plaintiff in error.

G. E. Pritchett, for defendant in error.

MAXWELL, C. J.

In the case at bar there was a decree of foreclosure and sale of the mortgaged premises. The plaintiff in error filed exceptions to the sale, and moved to set the same aside. The exceptions were overruled, and the sale confirmed, to which the plaintiff in error excepted.

That portion of the order of sale is as follows: “The motion of the plaintiff (defendant in error) to confirm the sale made herein, coming on to be heard, together with the objections of the defendant (plaintiff in error) thereto, after hearing counsel for the respective parties, and being fully advised in the premises, it is ordered by the court here that the said objections be overruled, and that said sale be in all things confirmed, upon the plaintiff stipulating to convey the property purchased by it at said sale to the defendant, John H. Green, upon receipt of $2,000, within sixty days from this date, and the plaintiff now, in open court, having offered to comply with said condition, and having filed its written stipulation to that effect, it is ordered that the sale heretofore made by the sheriff of Washington county herein be in all things confirmed,” etc.

Has the court authority to confirm a sale conditionally in this manner? The court must either confirm or set aside a sale; it cannot modify it or impose conditions. In Ohio Life Ins. Co. v. Goodin, 10 Ohio St. 557, the appraisers described a lot as containing thirty feet front, and appraised the value thereof, with the improvements, at $260 per front foot. After the sale and confirmation thereof, it was discovered that the lot was only twenty-seven feet front. The court thereupon entered a supplemental decree, requiring the creditor to refund the amount paid by mistake. It was held that the court could not modify the terms of the sale. To the same effect, see Benz v. Hines, 3 Kan. 390; Kinnear v. Lee, 28 Md. 488;Davis v. Stewart, 4 Tex. 223. In Paulett v. Peabody, 3 Neb. 196, the court say: “A very large discretion is necessarily given to the district court in the supervision of sales of real estate under its judgments and decrees. The statute points out very clearly certain steps which must be taken by ...