Link v. Connell

• Citation: 67 N.W. 475,48 Neb. 574
• Parties: LINK v. CONNELL.
• Decision Date: 20 May 1896
• Court: Supreme Court of Nebraska

48 Neb. 574

67 N.W. 475

LINK

v.CONNELL.

Supreme Court of Nebraska.

May 20, 1896.

Syllabus by the Court.

1. A sale of real estate to satisfy a judgment which has become dormant under the provisions of section 482, Code Civ. Proc., is voidable only, and cannot be assailed in a strictly collateral proceeding. Gillespie v. Switzer, 62 N. W. 228, 43 Neb. 772.

2. Where the record discloses an order of the district court sufficient in form, but omitting the name of the judge by whom it was made, the fact that the sole judge of the district named was at the date thereof disqualified to act in such proceeding by reason of having been attorney for one of the parties, raises no presumption against the validity of such order in view of the statute authorizing judges to interchange and hold court for each other.

3. Where a decree of foreclosure directs that the mortgaged property be sold by a master therein named, a sale by the sheriff to satisfy said decree under an order subsequently issued by the clerk is voidable at most, and such irregularity is cured by an order of confirmation regularly made.

4. While it is customary to make use of the words “Witness” or “Witnessed” in attesting the execution of deeds and other instruments affecting the title to real estate, such practice is neither necessary nor universal. Any expression from which it appears that the subscriber in fact witnessed the execution by the grantor, sufficiently answers the requirement of section 1, c. 73, Comp. St.

5. The pendency of a proceeding for foreclosure does not terminate with the entry of an order for the sale of the property bound by the lien, but continues as a rule for the purpose of the enforcement of the decree until confirmation of the sale and disposition of the proceeds thereof.

6. One who purchases property bound by a decree of foreclosure is, in the absence of equitable considerations resulting from the circumstances of the particular case, charged with such notice as the record imparts, and is not entitled to personal notice of sale and confirmation subsequently made in the enforcement of such decree.

7. Evidence examined, and held to sustain finding against the plaintiff in error upon the issue of adverse possession of property in dispute.

8. Verdict set out in opinion held sufficient to sustain the judgment complained of.

Error to district court, Douglas county; Ferguson, Judge.

Ejectment by William J. Connell against Harvey Link. There was a judgment for plaintiff, and defendant brings error. Affirmed.C. A. Baldwin and W. B. Morris, for plaintiff in error.

Connell & Ives and Otis H. Ballou, for defendant in error.

POST, C. J.

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 N. W. 1/4 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 damages, 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 was 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 20 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 11th, 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 17th 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. George 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. Gen. St. c. 14, §§ 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. Gen. St. c. 14, § 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 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...