Gulick v. Webb

• Decision Date: 18 September 1894
• Citation: 41 Neb. 706,60 N.W. 13
• Parties: GULICK ET AL. v. WEBB ET AL.
• Court: Nebraska Supreme Court

41 Neb. 706

60 N.W. 13

GULICK ET AL.

v.WEBB ET AL.

Supreme Court of Nebraska.

Sept. 18, 1894.

Syllabus by the Court.

1. Points not argued in the supreme court will be deemed to be waived.

2. Persons who desire to make a joint purchase of the property may enter into an agreement by which one person is authorized to bid,

on their joint account and for their joint benefit, on property about to be sold at sheriff's sale; and such agreement will not be illegal if it does not include the purpose not to compete, or not to bid, or to chill bids, or to prevent competition, or deter others from bidding. Nor does the fact that such agreement may indirectly have the effect to keep others from bidding make it unlawful. To render it illegal, it must further appear that the purpose of entering into the agreement was to avoid competition.

3. At a sheriff's sale of real property, five holders of liens against such property, none of whom were financially able to bid individually at such sale, entered into an agreement whereby one of their number, by attorney, bid in the property, which was struck off to him as trustee for himself and the other four lien holders. Held, that this was not such a combination as would of necessity discourage or prevent competition in bidding, and was therefore insufficient to vitiate the sale.

4. The evidence examined, and held sufficient to sustain the finding and judgment of the lower court in confirming the sale.

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

Action by W. D. Gulick and others against Mary Webb and others to enforce mechanics' liens, in which there was a decree for plaintiffs and sale of the property. From an order overruling their objections to a confirmation of such sale, D. T. Coffman and George E. Bigelow appeal. Affirmed.

W. Henry Smith, for appellants.

Stevens, Love & Cochran, for appellees.

HARRISON, J.

As the result of an action in the district court of Lancaster county to foreclose certain mechanics' and mortgage liens, the property proceeded against, to wit, lots Nos. 7 and 8 in block No. 315 of Jane Y. Irwine's addition to the city of Lincoln, otherwise known as subdivision 62 of S. W. Little's subdivision of the W. 1/2 of the S. W. 1/4 of section 24 in township 10 N., range 6 E. of the sixth P. M., in the city of Lincoln, Neb., was sold by the sheriff of said county under and by virtue of an order of sale issued in accordance with the terms of a decree rendered in the suit. The sale was made on the 16th day of February, 1892, to William H. Tyler, for the sum of $13,000, which was more than two-thirds of the appraised value. To the confirmation of the sale, objections were filed by George E. Bigelow, as follows: “Comes now the defendant George E. Bigelow, and shows and represents to the court that he is the owner of the equity of redemption in and to the property described in plaintiffs' petition in the above-entitled cause, and in the several answers and cross petitions of the defendants therein, and objects and protests against the confirmation of the sale heretofore made by the sheriff of the said premises described in said petitions, for the following reasons, to wit: (1) That said premises were not appraised in accordance to the laws of the state of Nebraska; that they were not appraised at their real value in money, but were appraised at a sum far below and vastly less than their real value in money. (2) That there was a confederation and combination on the part of the judgment lien holders in this cause to bid said property in at a certain sum, far less than its value, and far less than two-thirds of its real value in money, and that, by said combination and confederation so formed and entered into by the said judgment lien holders, purchasers were prevented from bidding at said sale, and said property was prevented from selling for a sum equal to what it would have brought, had such confederation and combination not been formed; that said confederation and combination so formed prevented competition in bidding at the sale of said property, and prevented purchasers from bidding thereon, and was in fraud of the rights of the owner of the equity of redemption of said premises; and, if said sale is confirmed and allowed to stand, it will work great and permanent loss and injury to this defendant. This defendant therefore moves the court that said sale be not confirmed, but that the same be set aside, and held of no force or effect.” And subsequently additional objections were filed by D. T. Coffman and George E. Bigelow, as follows: “And now, February 23, 1892, come the above-named parties, and by leave,” etc., “file the following objections and protests against the confirmation of the sheriff's sale,” etc.: “(1) The property was not properly appraised, as appears by appraisement filed. (2) No proper return of sale was made by the sheriff, as required by law, prior to the first order of confirmation. (3) No proper notice was posted in the sheriff's office, as is the custom of law, prior to sale. (4) The property was not properly described in the newspaper publication, as per affidavits of D. T. Coffman and George E. Bigelow, filed herewith and made a part hereof, in that it was not sufficiently identified and located, nor was it sufficiently described by improvement, so as to distinguish or identify it, or to attract bidders, or to assure them that the improvements belonged to the...