Hooper v. Castetter

• Citation: 63 N.W. 135,45 Neb. 67
• Parties: HOOPER ET AL. v. CASTETTER.
• Decision Date: 02 May 1895
• Court: Supreme Court of Nebraska

45 Neb. 67

63 N.W. 135

HOOPER ET AL.

v.CASTETTER.

Supreme Court of Nebraska.

May 2, 1895.

Syllabus by the Court.

1. In reviewing the action of the district court in refusing to set aside a sale, this court can consider only whether the district court erred in refusing to set aside the sale on the specific grounds assigned for that purpose in the motion filed in the court below.

2. This court cannot, either on appeal or error, say that the district court should or should not have set aside a sale for any reason or irregularity appearing in the record, unless such reason or irregularity was urged upon the district court as a reason for its action. Smith v. Spaulding, 58 N. W. 952, 40 Neb. 339; Johnson v. Bemis, 7 Neb. 224; Ecklund v. Willis (Neb.) 62 N. W. 493, followed and reaffirmed.

3. A purchaser at a mortgage foreclosure sale will not be relieved from completing his purchase on account of defective title, or on the ground of there being prior incumbrances on the property, when the true condition of the title is fully set out in the pleadings and the record of the proceedings under which the sale was made, as he is chargeable with notice of such material facts as the record discloses. Norton v. Trust Co., 53 N. W. 481, 35 Neb. 466, followed and reaffirmed.

4. An officer selling property under execution or a decree in equity can sell such property on such terms, and such terms only, as are provided by the decree and the law in force governing such sale, which is incorporated into and a part of such decree.

5. An officer selling property on execution or under a decree in equity has no authority to sell on credit, or to accept in payment of the bid anything other than lawful money, unless otherwise expressly authorized by the terms of the decree or the law in force governing such sale.

6. An officer who makes return to an order of sale, issued for the satisfaction of a decree in a mortgage foreclosure proceeding, that he sold the property described in such return to a designated bidder, is conclusively presumed to have made such sale for cash, less the amount of the purchaser's claim, if any, existing against said property, and to satisfy which such sale was made, unless the decree on which said order of sale is based expressly authorizes a sale on credit.

7. A purchaser of property sold at judicial sale, who, after its confirmation, accepts a conveyance for said property executed in pursuance of such sale, its confirmation, and the order of the court, and who applies to and obtains from the court an order for a writ of possession for such property, thereby waives all errors and iregularities which occurred in the making of such sale, and all objections and exceptions to the court's order of confirmation.

8. The finding of a district court made on conflicting evidence, like the finding of a jury, is binding on this court, if such finding is supported by sufficient evidence.

9. Certain real estate was incumbered by two mortgages. The holder of the second mortgage brought a suit in equity to foreclose, obtained a decree, and at a sale thereunder purchased the property. The holder of the first mortgage was not made a party to the foreclosure suit. After obtaining his decree, but before the sale, the holder of the second mortgage purchased and took an assignment to himself of the first mortgage. Held, that his ownership of the first mortgage did not of itself entitle him, as against the mortgagor, to a decree applying the surplus proceeds of the sale towards the liquidation of the mortgage purchased.

10. In a suit to foreclose a real-estate mortgage, certain creditors of the mortgagor having ordinary judgments, apparent liens on the mortgaged property, were made parties defendant. They filed answers, asking that their judgments might be paid out of any surplus arising from the sale of the property and remaining after satisfaction of the mortgage being foreclosed, and the decree rendered so provided. The mortgagor, though personally served, did not appear in the case until after a sale of the mortgaged property, when he applied to the court for an order to have $2,000 of the surplus paid to him in lieu of his homestead exemption. Held: (1) That the mortgagor was entitled to the order. (2) That the question of the homestead rights of the mortgagor was not involved nor litigated in the foreclosure suit. (3) That the decree rendered in the foreclosure suit was not a bar to the mortgagor's application to have the surplus paid to him in lieu of his homestead. (4) That, though the judgments were liens upon the real estate before the bringing of the foreclosure suit, such liens were subject to the mortgagor's homestead rights in the property. (5) That the decree in the foreclosure suit finding the judgments were liens, and ordering them paid out of the surplus, should be construed as if it read that they were liens, and should be paid out of the surplus subject to the mortgagor's homestead rights. (6) That the mortgagor did not lose his homestead exemption because the real estate had been converted by a decree of the court into money, nor did the judgment creditors acquire by the decree any greater liens upon or right to the money than they had against the property. (7) That the mortgagor might claim the surplus money in lieu of his homestead exemption at any time before such surplus was finally distributed by order of the court.

Error to district court, Washington county; Scott, Judge.

Action to foreclose a mortgage by Abram Castetter against O. N. Remington and wife, mortgagors, and Edward Hooper and others, judgment creditors. To the judgment rendered, both parties assign error. Affirmed.L. W. Osborn and Walton & Mummert, for Hooper and other creditors.

Chas. Offutt, for Castetter.

Jesse T. Davis and E. R. Duffie, for defendants Remington.

RAGAN, C.

Abram Castetter brought this suit in equity to 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, 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 the 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 the 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 this 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 pr...