Link v. Connell
| Decision Date | 20 May 1896 |
| Docket Number | 6524 |
| Citation | 67 N.W. 475,48 Neb. 574 |
| Parties | HARVEY LINK v. WILLIAM J. CONNELL |
| Court | Nebraska Supreme Court |
ERROR from the district court of Douglas county. Tried below before FERGUSON, J.
AFFIRMED.
C. A Baldwin and W. R. Morris, for plaintiff in error.
Connell & Ives and O. H. Ballou, contra.
This was an action of ejectment by Connell, the defendant in error, against the plaintiff in error, Link, in the district court for Douglas county, the subject of the controversy being the northwest quarter of section 2, township 14, range 11, in said county. A trial was had in the court below resulting in a verdict and judgment for the plaintiff therein for the possession of the property in dispute and for $ 1,800 damage, the value of the rents and profits thereof, and which has by appropriate proceeding been removed into this court for review. Both parties claim through Emanuel H. Link, who acquired title to the land described by patent from the United States. Connell, according to the evidence in the record, claims through certain mesne conveyances from Eliza K. Tarkington, to whom said property was conveyed by Henry Grebe, sheriff and master commissioner March 17, 1873, while the plaintiff in error, Link, claims by virtue of a quitclaim deed from his brother, Emanuel H. Link, the patentee named, bearing date of June 13, 1870. As most of the questions discussed relate to the proceeding antecedent to the execution of the deed to Mrs. Tarkington, it is deemed proper to notice, in their chronological order, the steps which led to that event.
On the 10th day of August, 1857, Emanuel H. Link, being the owner of the property in controversy, by mortgage deed conveyed the same to F. M. Aiken, as security for the note of the mortgagor, of even date therewith, for $ 280. Subsequently the Bloomington Bank, as holder of said note and mortgage, instituted proceedings for foreclosure in the territorial district court for Douglas county, and which were prosecuted to final decree on the 7th day of July, 1860. Provision was by said decree made for the sale of the mortgaged property by James G. Chapman, master commissioner, in case the respondent therein, Link, failed to pay the amount adjudged due within twenty days from and after the date last mentioned. On the 23d day of December, 1872, George Armstrong, as clerk of the district court, issued an order of sale for the satisfaction of said decree directed to the sheriff of Douglas county. On February 11, 1873, said order of sale was returned by Henry Grebe, sheriff, showing a sale in due form of the property mentioned to Eliza K. Tarkington. On March 10, 1873, an order was, on motion of the complainant, made to show cause by the following day why the said sale should not be confirmed. On the day last mentioned, to-wit, March 11, there was a formal order of confirmation, with direction to the sheriff to execute a deed conveying said property to the purchaser above named, and on March 17, following, said property was, pursuant to the last mentioned order, conveyed to Mrs. Tarkington, the purchaser, by deed, in which the said Henry Grebe is described as sheriff and master commissioner.
It is in the first place contended that the decree in question had become dormant prior to December 23, 1872, and not having been revived in the manner prescribed by law, the order of sale issued on that day for its enforcement was without authority, and the subsequent proceedings pursuant thereto, including the order of confirmation, were without jurisdiction and void. A question discussed at length by counsel is whether section 482 of the Code, providing that any judgment shall become dormant in case execution shall not be issued thereon within five years, is applicable to decrees of foreclosure; but that question, although presented by another assignment, will not be examined in this connection, for two reasons: First, because we are unable to determine from the record that there was in fact any such failure as to bring the case within the operation of the statute; and second, assuming the section above cited to apply as well to decrees of foreclosure as to judgments at law, an order of sale for the enforcement of a dormant decree would at most be voidable only, and cannot be assailed in a strictly collateral proceeding. Whatever doubts may be entertained by other courts respecting the proposition last stated, it is no longer the subject of controversy in this jurisdiction. The precise question was presented in the recent case of Gillespie v. Switzer, 43 Neb. 772, 62 N.W. 228, in which, after conceding for the purpose of the argument that decrees of foreclosure are within the provisions of the statute, it was held, quoting from the syllabus, that "a sale on an execution issued upon a dormant judgment is merely voidable, and neither such sale nor the title acquired thereunder can be assailed in a purely collateral proceeding."
The order of confirmation is assailed as void upon the further ground that Hon. Geo. B. Lake, the judge by whom it was entered, was solicitor for the Bloomington Bank in the suit against Emanuel H. Link, and who, as such, secured the decree of foreclosure upon which said order depends; but a careful examination of the record discloses no foundation whatever for that contention. It is true that George B. Lake appeared as solicitor for complainant in the foreclosure proceeding. There is, however, nothing in the record to indicate the name of the judge who allowed the order of confirmation. Assuming, as we are asked to do, that the solicitor named was at the date in question, to-wit, March, 1873, sole judge of the district court for Douglas county, still we cannot indulge the presumption that he entered the order complained of. By statute then in force judges were permitted to interchange and hold court for each other. (General Statutes, ch. 14, secs. 19, 55.) And a judge was then, as now, disqualified from acting except by mutual consent of parties, in any case or proceeding in which he had been attorney for either party. (General Statutes, ch. 14, sec. 33.) We are bound to presume, in view of the provision cited, that the order of confirmation was entered by one of the other judges of the state, or, if made by Judge Lake, that it was done with the consent of the parties thereto.
It is next argued that by terms of the decree James G. Chapman, as master commissioner, was alone empowered to advertise and sell the mortgaged property; that the order of sale issued to the sheriff was a usurpation of authority by the clerk, and that the sale and deed made in pursuance thereof are void and insufficient to pass the title of the property therein described. The order of sale was, it may be assumed, irregularly issued, and that application should have been made to the court to so modify the decree as to authorize its enforcement by the sheriff instead of by the master named. The error is, however, not one which affects the jurisdiction of the court and was cured by the order of confirmation. The jurisdiction of the court over the person of Emanuel H. Link cannot be doubted, since the record affirmatively shows an appearance by him. Any mere error in the prosecution of the cause should, therefore, have been corrected by means of a direct proceeding for that purpose, and cannot be made the subject of a collateral attack upon the decree or subsequent orders essential to its enforcement. (Crowell v. Johnson, 2 Neb. 146; McKeighan v. Hopkins, 14 Neb. 361, 15 N.W. 711; Neligh v. Keene, 16 Neb. 407, 20 N.W. 277; Taylor v. Coots, 32 Neb. 30, 48 N.W. 964.) It is said in Neligh v. Keene, supra: "Where the court has jurisdiction the confirmation of the sale cures all defects and irregularities in the proceedings and such order cannot be attacked collaterally." It is unnecessary to review the cases cited in this connection by the plaintiff in error. It is sufficient that they in nowise conflict with the foregoing.
On the production of the record of the deed to Mrs. Tarkington counsel for plaintiff in error objected to its admission as proof of title on the ground that it was not witnessed as required by law, which objection was overruled and the deed received in evidence, and which ruling is now assigned as error. To the left of and below the signature of Henry Grebe the grantor, and immediately preceding the certificate of acknowledgement, as shown by the copy accompanying the bill of exceptions, appear the following words:
It is not pretended that the signature of George Armstrong, the alleged witness, is a forgery, or that it was written at a time other than that of the execution of the deed. It is possible, as argued by counsel, that the words above quoted have reference to erasures and interlineation appearing upon the face of the conveyance rather than the execution thereof. While that argument would doubtless have been effective as a reason for demanding the production of the original deed instead of the record, it is without force as applied to the objection actually made; nor, in the view we take of the record, is it material to inquire whether the words in question refer to erasures or interlineations appearing upon the face of the deed, or whether they are parts merely of the printed form made use of by the conveyancer, since the remaining words, to-wit: "In the presence of * * * George Armstrong," is a sufficient attestation to answer the requirement of the statute. By section 1, chapter 73, Compiled Statutes, it is provided that deeds of real estate, "if executed in the state, must be signed by the grantor or grantors, being of lawful age, in the presence...
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