Kampman v. Nicewaner
| Decision Date | 02 May 1900 |
| Citation | 60 Neb. 208,82 N.W. 623 |
| Parties | KAMPMAN v. NICEWANER ET AL. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. A court of equity, when justice requires it, and its powers are seasonably invoked, may vacate an order confirming a judicial sale, and discharge the purchaser, who has become such through fraud, accident, or mistake.
2. An order confirming a judicial sale adjudicates only the proceedings under the order of sale. It has no relation to such grounds for equitable relief as were unknown to the parties and to the court at the time the order of confirmation was entered.
3. Where no attack has been made on an appraisement of property for the purpose of a judicial sale, an order setting aside such appraisement is unauthorized.
4. There is no authority in the law for a second appraisement of property for the purpose of a judicial sale, unless such property remains unsold for want of bidders after having been twice advertised and twice offered for sale under the first appraisement.
Appeal from district court, Antelope county; Robinson, Judge.
Action by Annie K. Kampman against Bascum Nicewaner and others. Judgment for plaintiff, and defendants appeal. Reversed.
J. F. Boyd, for appellants.
H. D. Kelley and Fred H. Free for appellee.
Annie K. Kampman employed H. D. Kelly, Esq., of the Madison county bar, to act for her in foreclosing a mortgage covering real estate situate in Antelope county, and directed him, in case the property should be sold under a decree of the court, to bid the amount of her claim, but under no circumstances to bid more than that amount. In pursuance of his employment, Mr. Kelly, in behalf of his client, commenced an action in the district court against the owner of the land and others having interests therein, obtained a decree of foreclosure, and caused an order of sale to be issued for its enforcement. He then wrote H. L. McGinite, of Neligh, as follows: Mr. McGinite, acting under the authority of this letter, attended the sale, and caused the mortgaged premises to be struck off to Mrs. Kampman for the sum of $934. The appraised value of the property was $1.368.11, and the amount of plaintiff's claim at the time of the sale was $574.73. After the sale had been confirmed, Mr. Kelly discovered that the land had been bought in in violation of his client's instructions, and thereupon, and during the same term at which the order of confirmation was entered, moved the court to rescind its action and direct a resale of the property. This motion was sustained, and the sale and appraisement were set aside. The property was afterwards reappraised. Its valuation was fixed at $581.97, and it was sold to the plaintiff for $662.31. From an order confirming the second sale, E. C. Coon, the owner of the property, prosecutes this appeal.
Under the circumstances disclosed by the record, the court was undoubtedly warranted in revoking the order of confirmation, and releasing the plaintiff from her bid, not because the authority conferred upon Kelly to bid the amount of the mortgage debt was incapable of being delegated (Renwick v. Bancroft, 56 Iowa, 527, 9 N. W. 367;Bodine v. Insurance Co., 51 N. Y. 117;Grady v. Insurance Co., 60 Mo. 116;McKinnon v. Vollmar, 75 Wis. 82, 43 N. W. 800, 6 L. R. A. 121, nor because the plaintiff could not be bound beyond the limits of the authority actually given to her agent , but for the reason that it is clearly within the power of a...
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