Hooper v. Castetter
| Decision Date | 02 May 1895 |
| Docket Number | 5798 |
| Parties | EDWARD HOOPER ET AL. v. ABRAM CASTETTER ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court of Washington county. Tried below before SCOTT, J.
AFFIRMED.
Charles Offutt, for Abram Castetter:
The order of confirmation is erroneous, because no copy of the appraisement was deposited with the clerk of the district court. (McKeighan v. Hopkins, 14 Neb. 367; Jones v Mill, 9 Neb. 254.)
The failure of the appraisers to deduct and enumerate prior incumbrances made the order of confirmation erroneous. (Sessions v. Irwin, 8 Neb. 5.)
The order of confirmation was erroneous, because Castetter's bid was not absolute, but was expressly conditioned upon the application of the mortgage for four thousand five hundred dollars as part of the purchase price. (Morrill v Davis, 27 Neb. 775; Hurt v. Stull, 4 Md. Ch., 391; Armor v. Cochrane, 66 Pa. 308; Bozza v. Rowe 30 Ill. 198.)
Had the bid made for Castetter been unconditional it would not have bound him. (Brown v. Johnson, 51 Am. Dec. [Miss.], 118.)
The order of confirmation was also erroneous, because the bid was induced by the false representations and subsequently violated promises of the judgment debtor.
As to the question of distribution the following cases were cited: Adams v. Angell, L. R. 5, Ch. Div. [Eng.], 634; Bullard v. Leach, 27 Vt. 495; Smith v. Swan, 69 Iowa 412; Pyke v. Gleason, 60 Iowa 150; Rector v. Rotton, 3 Neb. 171; Jackson v. Creighton, 29 Neb. 310.
L. W. Osborn, for judgment creditors:
A decree foreclosing a mortgage is none the less final because subsequent proceedings under the direction of the court may be necessary to execute the decree. (Bronson v. La Crosse & M. R. Co., 2 Black [U. S.], 531; Ray v. Law, 3 Cranch [U. S.], 179.)
The decree was conclusive. Nothing further was to be done except to make the sale and distribute the proceeds as directed by the decree. (Jones, Mortgages, secs. 1587, 1588; Freeman, Judgments, sec. 303, and cases cited.)
The Remingtons failed to assert their rights before the decree was entered and are concluded by it. (Freeman, Judgments, secs. 246-249.)
As to homestead rights and waiver thereof the following authorities were cited: Jones, Mortgages, sec. 1632; Chapman v. Lester, 12 Kan. 592; Searle v. Chapman, 121 Mass. 19; White v. Polleys, 20 Wis. 504.
Jesse T. Davis, E. R. Duffie, and Francis A. Brogan, contra.
See opinion for statement of the case.
Abram Castetter brought this suit in equity in the district court of Washington county against O. N. Remington and wife and a number of other persons, hereinafter designated "judgment creditors." The object of the action was to foreclose certain mortgages belonging to Castetter which had been executed and delivered to him by Remington and wife on certain real estate in said county. At the time the suit was brought the Scottish-American Investment Company held a mortgage upon this real estate for $ 4,500. This mortgage had been executed by Remington and wife and was a first lien upon all the real estate involved in this action. No reference was made to this mortgage in any of the pleadings filed in this case, and the Scottish-American Company, the holder of the mortgage, was not made a party to the action. Remington and wife, though personally served with summons, made no appearance in the action. The judgment creditors appeared and filed answers, setting out certain judgments which they held against Remington, and asked that in case of a sale of the mortgaged premises under Castetter's mortgages, and after the satisfaction of such mortgages, that the surplus proceeds of the sale might be applied towards the satisfaction of their judgments. By the decree pronounced in the case the district court found the amount due Castetter on his mortgages made by Remington and the amount due each of the judgment creditors from Remington, but that the liens of Castetter and of the judgment creditors were each subject to the $ 4,500 mortgage held by the Scottish-American Investment Company as above stated. Aside from this mortgage Castetter's debt was declared to be the first lien upon the premises. The judgment creditors were declared to have liens upon the premises, subject to Castetter's, in the order of the date of the filing in the office of the clerk of the district court of said county of their judgments. The decree further provided for a sale of the mortgaged premises and the bringing of the proceeds into court to be applied to the liquidation of the amounts found due Castetter and the judgment creditors. The issuance of an order for the satisfaction of the decree was, at the request of Remington, stayed for nine months in pursuance of the statute. On the 28th of January, 1892, the order of sale was issued, and on the 7th of March, 1892, the sheriff returned said order of sale into court, reciting that he had on the 4th day of March, 1892, sold all the real estate described in the decree at public auction to Abram Castetter, the plaintiff in the action, for $ 11,200. On the 9th of March, 1892, Castetter filed a motion to set aside the sale made by the sheriff, the only ground of this motion being "that the bid at said sale was made by this plaintiff under a total misapprehension of facts, as shown by affidavits filed in support of this motion." On the 27th of September, 1892, the court overruled the motion of Castetter to set aside the sale and confirmed it. To this ruling of the court Castetter took no exception, but at the same time made application for and obtained from the court an order for a writ of possession of the premises. After the rendition of said decree, but before the sale thereunder, Castetter purchased of the Scottish-American Investment Company its $ 4,500 mortgage, took an assignment of the same, and owned and held said mortgage and the debt it secured at the date of the judicial sale. On the same day that the court overruled Castetter's motion to set aside this sale he filed in the case an application reciting the existence of this Scottish-American Investment Company's mortgage as a first lien upon the premises at the time of the bringing of the suit, and that at the request of Remington he had purchased and taken an assignment of said mortgage after the rendition of the decree and before the sale herein; that he had made the purchase of said mortgage under an agreement with Remington that the amount due on said mortgage should be applied by him on whatever bid he might make for said mortgaged property at the sale thereof; and he prayed the court to order that after the amount found due him from Remington by the decree, with interest and costs, had been satisfied, the surplus proceeds arising from the sale of said property might be applied to the liquidation of the Scottish-American Company mortgage. This application the court denied. The judgment creditors also made application to the court for an order directing that whatever remained of the $ 11,200, after paying the costs of the suit and the amount found due Castetter by the decree, should be applied towards the payment of the amounts found due them on their judgments against Remington. This order the court refused, and on the application of Remington and wife ordered the amount found due Castetter by the decree, with interest and costs of the action, to be first paid out of the bid of $ 11,200, and that out of the surplus there should be paid to Remington and wife $ 2,000 in lieu of a homestead, and if any surplus then remained it should be distributed to the judgment creditors. Castetter has prosecuted to this court a petition in error to reverse the order of the district court overruling his motion to set aside the sale, and to reverse the order of the court overruling his application to have the surplus proceeds of the sale applied to a liquidation of the Scottish-American Company mortgage. The judgment creditors have prosecuted to this court a joint petition in error to reverse the order of the court postponing the payment of their judgments out of the surplus proceeds of the sale to the homestead claims of Remington and wife. We will first dispose of the petition in error of Castetter.
1. The order of the district court overruling Castetter's motion to set aside the sale: Counsel in his argument here alleges various irregularities as reasons why the court should have sustained Castetter's motion to set aside the sale. It is said that no copy of the appraisement of the property was deposited with the clerk of the court before the property was advertised and sold; that the appraisers failed to deduct and enumerate incumbrances upon the property which were prior to those for which the property was sold; that Castetter's bid was not absolute, but was a conditional bid; that he was not himself present at the sale, but the bid was made in his behalf by his agent and that this agent violated his instructions. As already seen, the only ground alleged by Castetter in his motion for setting aside this sale was that the bid made by him had been made under a misapprehension of facts. In Johnson v. Bemis, 7 Neb. 224, it was held: ...
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