Lancaster Cnty. v. Schwarz

• Decision Date: 12 December 1949
• Docket Number: No. 32647.,32647.
• Citation: Lancaster Cnty. v. Schwarz, 152 Neb. 15, 39 N.W.2d 921 (Neb. 1949)
• Court: Nebraska Supreme Court
• Parties: LANCASTER COUNTY v. SCHWARZ et al.

152 Neb. 15

39 N.W.2d 921

LANCASTER COUNTY

v.SCHWARZ et al.

No. 32647.

Supreme Court of Nebraska.

Dec. 12, 1949.

The County of Lancaster sued Albert P. Schwarz, his wife, and others to foreclose a lien for taxes on certain lands.

From an order of the District Court of Lancaster County, Ankeny, J., overruling amended objections by Kenneth Green to confirmation of a sheriff's sale of the lands to Otto H. Schmidt pursuant to a foreclosure decree, the objector appealed and the county cross-appealed.

The Supreme Court, Carter, J., dismissed the appeal, holding that the trial court properly rejected the objector's upset bid, so that he had no appealable interest, and that the court's order overruling the county's motion to deny confirmation of the sale and set it aside was not a final or reviewable order from which the county could appeal.

Syllabus by the Court.

1. A successfu bidder at a judicial sale becomes a party to the proceedings and may appear and urge confirmation and appeal from an order setting the sale aside.

2. An upset bid, made after the judicial sale and before confirmation, is relevant only to the extent that it bears upon the fairness of the judicial sale and the adequacy of the high bid there obtained.

3. An upset bid, resulting solely from the enhancement of the value of the property after sale and before confirmation, is not relevant in determining whether the sale should or should not be confirmed.

4. An upset bidder in a tax lien foreclosure, whose bid has not been accepted, has no appealable interest in the litigation.

5. An order overruling a motion to deny confirmation of a judicial sale and to set the sale aside is not ordinarily a final or appealable order.

6. A county engaged in the foreclosure of a tax lien may not appeal from the overruling of its objections to confirmation or its motion to deny confirmation of the sale. As to the county, such an order is not a final order.

Frederick H. Wagener, Herbert A. Ronin, Arthur E. Perry, Lincoln, Chambers, Holland & Groth, Lincoln, for appellant.

Miles W. Johnston, Lincoln, for appellees.

Heard before SIMMONS, C. J., and CARTER MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CARTER, Justice.

On August 9, 1946, this action was commenced to foreclose the lien for taxes on the lands involved in this appeal, and other lands. On September 18, 1946, the trial court entered its decree of foreclosure, finding the amount of the lien to be $4,080.09. The lands were sold on November 19, 1946, at sheriff's sale pursuant to the decree to Otto H. Schmidt for $1,000. On November 18, 1948, immediately prior to the expiration of the two-year redemption period, objections to the confirmation of the sale were filed by the appellant, Kenneth Green, supported by an offer by him to purchasethe property for $1,500. He deposited the amount of $1,500 into court to assure the good faith of his bid. The court overruled the objections to confirmation. On January 29, 1949, amended objections to confirmation were filed by Green, supported by an offer by him to purchase the property for $2,000. An additional $500 was also paid into court. The court overruled the amended objections to confirmation on February 14, 1949, and from this order Green and the county of Lancaster appeal.

The evidence in this case establishes that $1,000 was the reasonable market value of the property on November 19, 1946, the date of the sheriff's sale. The evidence also shows that the reasonable market value of this property had greatly increased during the period the confirmation of the sale was stayed pending the expiration of the two-year period for redemption. In other words, the evidence sustains the finding of the trial court that the property was sold at a fair and reasonable value as of the date of the sheriff's sale. It is plain therefore that the upset bid made by Green immediately prior to the expiration of the two-year redemption period was brought about by the increase in value of the property subsequent to the sheriff's sale thereof. It is the contention of the appellants that this affords a basis for setting aside the sale and ordering a resale of the property, or, in the alternative, the acceptance of the upset bid and the confirmation of the sale to the upset bidder.

It is well established tht the sale of property at judicial sale to the highest bidder is not final and complete until confirmed by the court directing the sale. If the sale was fairly conducted and the property sold for a reasonable and fair value under the circumstances, the court is ordinarily required in the exercise of its judicial discretion to confirm the sale. Inadequacy of price is not of itself sufficient to warrant a resale unless it appears that such resale would probably produce a higher price. Due regard must be given to the rights of the successful bidder and the stability of judicial sales generally. The successful bidder at a judicial sale acquires a vested right by his bid and has an appealable interest when his rights are cut off by the court. Consequently, a successful bidder may appear and urge confirmation and appeal from an order setting the sale aside. Siekert v. Soester, 144 Neb. 321, 13 N.W.2d 139, 152 A.L.R. 527.

An upset bid, made after the judicial sale has been held and prior to its...