Lamson v. Bohrer

• Decision Date: 04 December 1901
• Citation: 63 Neb. 105,88 N.W. 161
• Parties: LAMSON v. BOHRER ET AL.
• Court: Nebraska Supreme Court

63 Neb. 105

88 N.W. 161

LAMSON

v.BOHRER ET AL.

Supreme Court of Nebraska.

Dec. 4, 1901.

Syllabus by the Court.

Where real estate is sold in pursuance of an order of the district court entered in a decree of foreclosure, and there is omitted from the order under which the sheriff acts in making such sale a sum found and decreed to be a third lien, and the property did not sell for enough to satisfy the prior liens, such omission in no way prejudices the rights of the owners of the fee title to the land so sold, and is not sufficient ground for setting aside such sale.

Appeal from district court, Buffalo county; Sullivan, Judge.

Action by S. Warren Lamson against David Bohrer and others. Judgment for plaintiff, and defendants appeal. Affirmed.

John N. Dryden, for appellants.

Wm. Gaslin, for appellee.

HOLCOMB, J.

On an application for confirmation of a sale of real estate made in foreclosure proceedings the owners of the fee title objected to the entry of the order on the ground “that the order of sale and all proceedings thereunder were based upon the original decree, and were not in accordance with the decree as modified November 12, 1897, in that a lien of David Bohrer for $892.25 was entirely omitted from said proceedings.” The objection was overruled, and the sale confirmed, from which order defendants appeal.

From the record it appears that in the rendition of a decree in the action the plaintiff was given a first mortgage lien on the mortgaged premises for the sum of $2,606.70, and a tax lien for the sum of $257.49. One of the defendants was given a junior tax lien for $230.40, which was decreed to be a second lien. Another defendant was given a third and mortgage lien for the sum of $390. The property was ordered sold, and the proceeds brought into court, to be applied on the several liens found to exist according to their priorities. Afterwards, and on the 12th day of November, 1897, on the motion of one of the defendants, the decree first rendered was modified so as to give the moving defendant a second mortgage lien on the same premises for $892.25, thus displacing the lien for $390, above mentioned, which, by the modified decree, was made a fourth lien. The property was sold under and in pursuance of the decree first rendered, omitting therefrom the subsequent modification with reference to the third lien as found and determined in the modified decree. In the original decree and as modified the proceeds were directed to be brought into court for distribution, to be applied in the order of priority as fixed therein. The property was duly appraised,...