Luikart v. Graf
| Decision Date | 15 April 1936 |
| Docket Number | 29735 |
| Citation | 266 N.W. 641,130 Neb. 736 |
| Parties | E. H. LUIKART, RECEIVER, APPELLEE, v. JOHN O. GRAF ET AL., APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Johnson county: JOHN B. RAPER JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
Defendant in a foreclosure action is not entitled to the benefit of the moratory statute prior to sale, where the mortgage lien equals or exceeds the actual value of the mortgaged premises.
2. Record examined and judgment affirmed.
Appeal from District Court, Johnson County; Raper, Judge.
Action by E. H. Luikart, receiver of the Columbus State Bank of Columbus, Nebraska, and of the Silver Creek State Bank of Silver Creek, Nebraska, who was substituted by the American Building Corporation, which was substituted by the L. L Coryell Corporation, against John O. Graf and others. From an order, defendants appeal.
Affirmed.
Lewis C. Westwood, for appellants.
Raymond B. Morrissey, Tunison & Joyner, Richard Travis and Fred G. Hawxby, contra.
Heard before GOSS, C. J., EBERLY, DAY, PAINE and CARTER, JJ.
Defendants appeal from an order denying the further continuance of a moratorium in a strict foreclosure of a contract.
On September 21, 1932, E. H. Luikart, as receiver of Columbus State Bank and of Silver Creek Bank, was granted a decree of strict foreclosure of a land contract on the lands involved. Afterwards American Building Corporation succeeded to the rights of plaintiff and was substituted for him. And now L. L. Coryell Corporation has in turn succeeded to the rights of the receiver. The decree of strict foreclosure was not actually filed and entered until November 8, 1932. It provided for the absolute vesting of title in plaintiff if defendants failed to comply with the requirement to make certain payments by April 1, 1933, and stayed action until that date. On March 27, 1933, defendants applied for and obtained a stay under House Roll No. 600 of the 1933 session of the legislature (Laws 1933, ch. 65) now found in sections 20-21,159 to 20-21,164, Comp. St. Supp. 1933. On April 4, 1934, defendants applied for a further moratorium until March 1, 1935, which was allowed on April 13, 1934. June 22, 1935, defendants applied for another moratorium under House Roll No. 1 of the 1935 regular session of the legislature (Laws 1935, ch. 41, Comp. St. Supp. 1935, sec. 20-21,159), which amends section 20-21,159, Comp. St. Supp. 1933, so as to extend the moratorium until March 1, 1937, unless "good cause is shown to the contrary." On August 1, 1935, after objections filed and a full hearing, the court denied the application. The substituted plaintiff, American Building Corporation, was granted a writ of assistance. It is from this order defendants appeal.
The question at issue is whether the land is of sufficient value to pay the encumbrances for which defendants are liable if they were to redeem. Those encumbrances amounted, on August 1, 1935, to approximately $ 30,000. The farm consists of 276 acres. Some of the witnesses referred to it as the east 156 acres and the west 120 acres and in their appraisals they referred to it as two separate tracts.
All witnesses valued the farm by the acre. We compute the total value given by each witness. Plaintiff had two witnesses as to value. The first valued the farm at $ 22,080, the second at $ 25,500. Defendants had four witnesses as to value. The first, defendant John O. Graf, valued the farm at $ 36,960 to $ 40,740, the second valued it at $ 30,480 the third at $ 30,480, and the fourth at...
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