Green v. The State Bank of Nebraska

• Decision Date: 01 July 1879
• Citation: 2 N.W. 228,9 Neb. 165
• Parties: JOHN H. GREEN, PLAINTIFF IN ERROR, v. THE STATE BANK OF NEBRASKA, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

2 N.W. 228

9 Neb. 165

JOHN H. GREEN, PLAINTIFF IN ERROR, v. THE STATE BANK OF NEBRASKA, DEFENDANT IN ERROR

Supreme Court of Nebraska

July 1, 1879

ERROR to the district court for Washington county. Tried below before SAVAGE, J. The facts appear in the opinion.

REVERSED AND REMANDED.

J. M Woolworth, for defendant in error.

1. The court, in the exercise of its discretion, could have confirmed the sale, or set it aside. Rorer on Judicial Sales § 108, and cases cited.

2. But it could not make a contract for the parties other and different from that made when the bid was accepted. This it attempted to do, and the order is therefore erroneous. Rorer § 108, and cases cited.

George E. Pritchett, for defendant in error.

1. The confirmation of judicial sales is a matter of discretion to be exercised by the court. The matter of confirmation rests peculiarly upon the wise discretion of the court. Rorer on Judicial Sales, §§ 124 and 128.

2. Error will not lie upon what is matter of discretion in a court. Chaffel v. Soldan, 5 Mich. 242. Jenkins v. Brown, 21 Wend., 454. Walton v. Walton, 19 Mo. 667.

OPINION

MAXWELL, CH. J.

In the case at bar there was a decree of foreclosure and sale of the mortgaged premises. The plaintiff in error (defendant below) 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 confirmation is as follows: "The motion of the plaintiff to confirm the sale made herein coming on to be heard, together with the objections of the defendant 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 the 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 judgment and decrees. The statute points out very...