Lincoln Nat. Life Ins. Co. v. Richards

• Decision Date: 05 March 1937
• Docket Number: 29888.
• Citation: 271 N.W. 794,132 Neb. 282
• Parties: LINCOLN NAT. LIFE INS. CO. v. RICHARDS ET AL.
• Court: Nebraska Supreme Court

271 N.W. 794

132 Neb. 282

LINCOLN NAT. LIFE INS. CO. v. RICHARDS ET AL.

No. 29888.

Supreme Court of Nebraska.

March 5, 1937

Syllabus by the Court.

1. " Mere inadequacy of price will not preclude confirmation of foreclosure sale, unless shocking conscience of court, or amounting to evidence of fraud." Erickson v. Hansen, 129 Neb. 806, 263 N.W. 132.

2. Moratory stay must be denied where it appears that the amount of mortgage lien on the land exceeds its actual market value.

3. Where the mortgagor has no valuable interest in the mortgaged premises to protect, good cause is shown for denial of an application for moratory stay.

Appeal from District Court, Deuel County; Nisley, Judge.

Suit by the Lincoln National Life Insurance Company against Wesley J Richards, Clara E. Richards, and others. From the judgment rendered, the named defendants appeal.

Affirmed.

E. E Richards, of Oshkosh, for appellants.

Francis V. Robinson and Ginsburg & Ginsburg, all of Lincoln, for appellees.

Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ.

GOOD Justice.

This is an appeal from an order of confirmation and denial of a moratorium in an action for foreclosure of a real estate mortgage.

The only objection to confirmation is that the mortgaged premises did not bring an adequate price. The mortgaged premises were bid in by the plaintiff for $9,600, but plaintiff also waived right to a deficiency judgment. The total amount of the decree in favor of plaintiff was $10,510, which with accumulated interest at the time of the sale, together with accumulated taxes, amounted to more than $12,000. Plaintiff's bid, therefore, was in effect more than $12,000 for the premises. The evidence of plaintiff is to the effect that the property was not worth more than $9,600 at the time of the sale, and $11,000 at the time of confirma tion, more than a year later. The evidence for plaintiff was by witnesses produced and orally examined in court, while the evidence for defendants, except that of defendant Richards himself, was by affidavit only.

There is a wide variation in the opinion of witnesses on either side. Evidence of value is largely a matter of opinion, especially as to realty. Montana Ry. Co. v. Warren, 137 U.S. 348, 353, 11 S.Ct. 96, 34 L.Ed. 681, 683.The evidence on behalf of defendants does not purport in the affidavits to state the market value of the premises. They speak of the intrinsic value, whatever that may be. There is no evidence, if the property was offered for sale again, that it would bring a larger price. No one has been produced who would bid more if a subsequent sale were had. The trial court was doubtless familiar with the witnesses and with the general condition in that part of the state, and was in a better position to determine the weight of the evidence, especially as to those witnesses who appeared before it. Under the circumstances, we will consider the fact that the trial court saw and observed the manner in which the witnesses testified, at least as to those who testified orally in court.

" Mere inadequacy of price will not preclude confirmation of foreclosure sale, unless shocking conscience of court, or amounting to evidence of fraud." Erickson v. Hansen, 129 Neb. 806, 263 N.W. 132.To the same effect are First Nat. Bank v. Hunt, 101 Neb. 743, 165 N.W. 139; Lindberg v. Tolle, 121 Neb. 25, 235 N.W. 670; Lemere v. White, 122 Neb. 676, 241 N.W. 105; Keller v. Boehmer, 130 Neb. 763, 266 N.W. 577; Srajhans v. Mares, 130 Neb. 924, 267 N.W. 82.

It may be noted that for more than five years defendants have not paid a penny on the principal of their mortgage,...