Kampman v. Nicewaner

• Citation: 82 N.W. 623,60 Neb. 208
• Decision Date: 02 May 1900
• Docket Number: 9,233
• Parties: MRS. ANNIE K. KAMPMAN, APPELLEE, v. BASCUM NICEWANER ET AL. APPELLANTS
• Court: Supreme Court of Nebraska

82 N.W. 623

60 Neb. 208

MRS. ANNIE K. KAMPMAN, APPELLEE, v. BASCUM NICEWANER ET AL. APPELLANTS

No. 9,233

Supreme Court of Nebraska

May 2, 1900

APPEAL from the district court of Antelope county. Heard below before ROBINSON, J. Reversed.

REVERSED AND REMANDED.

J. F Boyd, for appellants:

That appellee had full knowledge of each succeeding step of the proceedings through her agent, can not be questioned, and this fact is clearly established by the evidence in this case. Notice to the agent being notice to the principal, she is bound by it. Pereau v. Frederick, 17 Neb. 117; Merriam v. Calhoun, 15 Neb. 569; Wullenwaber v Dunigan, 30 Neb. 877.

Even if her agents had no authority to make the bid for appellee, it must be conceded that she through them had notice of the nature of this bid before confirmation, and, without protest or objection thereto, asked to have the sale confirmed and deed executed. No objection whatever being made until after the sheriff had commenced proceedings, by attachment in the district court, this delay by appellee amounts to a ratification and confirmation of the sale, and she is estopped from denying the validity of the bid made by her agents in her behalf. Prine v. Syverson, 37 Neb 860; Swartz v. Duncan, 38 Neb. 782.

H. D. Kelly and Fred H. Free, contra:

A judicial sale can be set aside for irregularities and an alias order of sale issued, and a new appraisement made. Nebraska Loan & Trust Co. v. Hamer, 40 Neb. 281.

The appellee did not act through any authorized agent, as the facts disclosed.

The record discloses that there was no laches on the part of appellee. At the very term of court at which the first sale was confirmed she moved the court to set the sale aside for the reason that there was a grave mistake and irregularities in the sale. Appellants have cited the case of Swartz v. Duncan, 38 Neb. 782. This case is not in any way in point. The facts in the case are that the plaintiff there rested on his rights for a term of five years or more without any objection. In the case at bar there is a repudiation of the acts of the parties, a disclaimer and motion to set aside, all made within the very term of court at which the first confirmation was had.

OPINION

SULLIVAN, J.

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 directing 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. McGinitie of Neligh as follows:

"An order of sale has been issued in the case of Annie K. Kampman vs. Bascom Nicewaner in the district court of your county and is no doubt now being advertised for sale. Will you kindly look the matter up and bid the land in in the name of the plaintiff for two thirds of the appraised valuation in case there are no other bidders, but in case there are other bidders, then bid the land up to the amount of our claim and oblige."

Mr. McGinitie, 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 Exchange Fire Ins. Co. 51 N.Y. 117; Grady v. American Central Ins. Co. 60 Mo. 116; McKinnon v. Vollmar, 75 Wis. 82, 43 N.W. 800), nor because the plaintiff could not be bound beyond the limits of the authority actually given to her agent (Markey v. Mutual Benefit Ins. Co. 103 Mass. 78; Hatch v. Taylor, 10 N.H. 538; Cruzan v. Smith, ...