Jones v. Null

• Decision Date: 30 September 1879
• Citation: 9 Neb. 254,2 N.W. 350
• Parties: REBECCA JONES AND OTHERS, PLAINTIFFS IN ERROR, v. WILLIAM NULL, DEFENDANT IN ERROR.
• Court: Nebraska Supreme Court

9 Neb. 254

2 N.W. 350

REBECCA JONES AND OTHERS, PLAINTIFFS IN ERROR,

v.WILLIAM NULL, DEFENDANT IN ERROR.

Supreme Court of Nebraska.

Filed September, 1879.

Error from the district court for Gage county.

L. W. Colby, for plaintiffs in error.

Mason & Whedon, for defendant in error.

MAXWELL, C. J.

This is an appeal from an order of the district court of Gage county, confirming a sale of certain real estate in said county. The sheriff's return to the order of sale states that a copy of the appraisement was forthwith deposited with the clerk of the district court of said county. The clerk's filing on the copy, however, shows it to have been filed on the sixteenth day of March, 1878, the sale having taken place on the eighth of that month.

In La Flume v. Jones, 5 Neb. 259, it was held that where the record is silent as to when the appraisement was deposited with the clerk, it will be presumed that the sheriff did his duty, and deposited a copy within the time required by law. It was also held that it must be deposited before the sale. The sheriff should perform the duty enjoined upon him by the statute forthwith, and deposit a copy of the appraisement with the clerk of the court, so that it may be examined by those interested in the property, and by those desiring to purchase.

The appraisement of property is one of the reasonable checks provided by the legislature against the oppression of the debtor, and the sacrifice of his property. It is the policy of the law to encourage competition at judicial sales, and this can only be done by permitting bidders to examine the title and the amount of encumbrances on the property, as found by the appraisers. The duty of depositing a copy of the appraisement, as required by law, is not a matter of mere form, but a substantial right of the debtor, and the sheriff has no authority to sell until this is done. The return of the sheriff states that he sold a portion of said real estate “to L. W. Colby for the sum of $1,925, and one hour after said sale the said Colby refused to pay the said sum bid by him until the confirmation of sale, and thereupon I resorted to the place of said sale and sold the said land to James M. Armstrong for $1,900,” etc. It will scarcely be contended that the sheriff had authority thus to sell. In case of the refusal of a purchaser to comply with his bid the officer may bring an action for the purchase money, or he may at once resell the property; but he cannot wait until the sale is closed, and the...