Lincoln Savings & Loan Association v. Anderson
| Citation | 212 N.W. 210,115 Neb. 199 |
| Decision Date | 24 January 1927 |
| Docket Number | 24385 |
| Parties | LINCOLN SAVINGS & LOAN ASSOCIATION, APPELLEE, v. CARL L. ANDERSON, APPELLANT |
| Court | Supreme Court of Nebraska |
APPEAL from the district court for Lancaster county: LINCOLN FROST JUDGE. Redemption permitted.
REDEMPTION PERMITTED.
C. C Flansburg, for appellant.
Burkett Wilson, Brown & Wilson, contra.
Heard before GOSS, C. J., ROSE, DEAN, DAY, GOOD, THOMPSON and EBERLY, JJ.
Carl L. Anderson and wife executed two notes running to the Lincoln Savings & Loan Association, plaintiff and appellee, hereinafter called the association, and secured each thereof by mortgage on the lot in controversy. Neither of which mortgages having been paid, such association commenced foreclosure proceedings as to each thereof in the district court for Lancaster county, making the Farmers State Bank of Davenport a party defendant, which last named bank interposed a cross-petition on a mortgage running to it on the same property from such Andersons, and praying foreclosure thereof. Issues were duly joined, and decree had on June 22, 1923, by which it was adjudged that there was due and owing such association on its first mortgage $ 3,223.66 with interest at the rate of 10 per cent. per annum from that date, being the first lien in suit, and on its second mortgage $ 522.88 with interest thereon at 10 per cent. per annum, being the second lien in suit; and further found that there was due and owing the Farmers State Bank of Davenport the sum of $ 2,850, which bore interest at the rate of 8 per cent. per annum from the date of decree, and that such amount was a third lien on such premises. It was further ordered that the premises be sold and the proceeds applied in payment of the liens as above indicated. Defendants Anderson interposed a request for a stay of nine months, which was granted. Later, an order of sale was issued, property sold, and bid in by the Farmers State Bank for the sum of $ 5,000, which sale was afterwards confirmed, supersedeas bond filed and approved, and appeal taken to this court, by the Andersons, which appeal was perfected on September 8, 1924, and judgment affirmed on November 19, 1926. (No written opinion.) In the meantime, to wit, January 20, 1925, voluntary bankruptcy proceedings were instituted by Carl L. Anderson, resulting in his discharge on June 25, 1925. In such bankruptcy proceedings the notes heretofore referred to were each listed as indebtedness owing by the bankrupt. However, neither of the mortgagees appeared in such proceedings, but each relied on the decree of the trial court and their rights thereunder. Shortly after such confirmation in the trial court, and more than four months prior to the filing of the petition in bankruptcy, Anderson and wife sold and conveyed to Ira C. Deats and W. C. Muirhead all their right, title and interest in and to such lot, together with their right of redemption from such sale. Afterwards, to wit, December 27, 1926, and within the forty days allowed for a motion for rehearing, and before the mandate on such affirmance by this court had been issued, Deats and Muirhead applied to this court, by way of a motion filed in this case, for an order fixing the amount necessary to redeem the land from such decree and sale, which motion came on for hearing January 6, 1927, and case submitted.
The contention of the moving parties is that, as the bid was sufficient to satisfy the association's respective claims, and $ 854.24 of the claim of the Farmers State Bank, and as the remainder unpaid to the latter, and for which such bank would have been entitled to a deficiency judgment against such Anderson but for such bankruptcy proceedings, was satisfied in full by reason of such proceedings in bankruptcy, such moving parties now have a right to redeem from such sale by paying into court the amount of such bid with interest thereon at 7 per cent. per annum from the date of its payment into court, which so far as this record is concerned is the date of such sale, or if such bank is not under the statute a "plaintiff", then such $ 5,000 with 12 per cent. interest.
As to these contentions on the part of Deats and Muirhead the Farmers State Bank interposes the following objections in substance, to wit: (1) That, as no motion for a rehearing was filed within the forty days allowed for such purpose, this court is without jurisdiction to consider either proposition presented; (2) that the bankruptcy proceedings could in no manner affect the decree of this court or the rights of the parties under the same as to the securities there involved or of the procedure to be had thereunder as indicated by section 9012, Comp. St. 1922; (3) that, if it should be determined that redemption in this case could be had, then and in that case Deats and Muirhead would be compelled to pay to the clerk of the district court for Lancaster county for the use of the Lincoln Savings & Loan Association the sum of $ 4,019.66 with interest at 10 per cent. per annum from the date of decree to the date of payment, and for the use of the Farmers State Bank of Davenport the amount of its decree, to wit, $ 2,850, with 8 per cent. interest per annum thereon from the date of such decree to the date of payment to the clerk; and that such bank is entitled to a return of the money, to wit, $ 5,000 paid by it into the office of such clerk as the purchase price, and that decree should be so entered herein, and, in addition thereto, that Deats and Muirhead be required to pay before redemption is had, and at the same time as above indicated, the costs of this suit, both in this and the trial...
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