Kampman v. Nicewaner, 9,233

CourtSupreme Court of Nebraska
Writing for the CourtSULLIVAN, J.
Citation82 N.W. 623,60 Neb. 208
Docket Number9,233
Decision Date02 May 1900

82 N.W. 623

60 Neb. 208



No. 9,233

Supreme Court of Nebraska

May 2, 1900

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


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 [82 N.W. 624]

[60 Neb. 210] 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...

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