McCarn v. Cooley

• Decision Date: 14 October 1890
• Citation: 46 N.W. 715,30 Neb. 552
• Parties: A. J. MCCARN, ADMINISTRATOR, ETC., ET AL., APPELLEES, v. EBEN COOLEY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

46 N.W. 715

30 Neb. 552

A. J. MCCARN, ADMINISTRATOR, ETC., ET AL., APPELLEES, v. EBEN COOLEY ET AL., APPELLANTS

Supreme Court of Nebraska

October 14, 1890

APPEAL from the district court for Knox county.Heard below before POWERS, J.

AFFIRMED.

J. H McIntosh, and John L. Webster(Ambrose & Strickler, being also of counsel), for appellants, cited, as to the notice of sale: Freeman, Executions, sec. 285; Murfree, Sheriffs, sec 676; Farr v. Sims, Rich.Eq. Cas. [S. Car.], 122 .

J. H. Berryman, and Holmes & Hays, contra, cited, on the same point: Code, sec. 497;Perkins v. Spaulding,2 Mich. 157.

OPINION

COBB, CH. J.

On the 28th day of March, 1887, the appellees and plaintiffs filed their petition in the district court of said county, to foreclose a mortgage given by the appellants and defendants, Eben Cooley and Phoebe, his wife, on a certain tract of land situate in said county, to-wit: The east half of the northeast quarter, and the east half of the southeast quarter of section 32; the west half of the northwest quarter, the west half of the southwest quarter, the east half of the southwest quarter, the southeast quarter of the northeast quarter, and the southeast quarter of section 33; the southwest quarter of the northwest quarter, the west half of the southwest quarter, and the southeast quarter of the southwest quarter of section 34, township 30, range 6 west, aggregating seven hundred and sixty acres, to secure to the plaintiffs the payment of $ 2,700, according to the terms of certain notes and bonds therein described.The mortgagors were personally served by summons on April 4, 1887.

The Dakota Mortgage Loan Corporation, of Boston, Mass. made defendant by publication, answered on May 19, 1887, that there was then due from the mortgagors $ 950 on a subsequent mortgage, and a lien junior to that of the plaintiffs, for which judgment was asked and distribution of the proceeds of the mortgaged premises according to priority of liens.

On the same day a decree was taken by the plaintiffs foreclosing their mortgage and directing the premises to be sold by the sheriff of the county as upon executions at law and the proceeds brought into court to be applied to the satisfaction of the sum of $ 3,115 as found due with costs and accruing costs.On the same day a decree was entered in favor of the defendant, The Dakota Mortgage Loan Corporation, as a junior lien to that of the plaintiffs on the mortgaged premises, for the sum of $ 850 to be satisfied accordingly and to have execution therefor.On March 1, 1888, an order of sale was issued to the sheriff, the lands were appraised, aggregating the value of $ 4,880, and on April 13, 1888, were sold to Eugene A. Crum for $ 3,325.A motion to set aside the sale, supported by affidavits, upon the following grounds, was overruled, and the sale was confirmed:

"I.That the files of the cause were lost from the clerk's office and could not be found at the time of the order of sale or the day of sale.

"II.That the notice of sale does not state the terms of sale.

"III.On the day of sale there was no copy of the appraisal or of the clerk's and treasurer's certificate on file in the clerk's office, and the appraisement was not its true value.

"IV.The appraisers fixed a lower estimate than they thought the lands were worth, at the instance of the plaintiffs.

"V.That one of the appraisers estimated it at $ 18 per acre.

"VI.That they did not view the land in making their appraisement.At the commencement of this action the prior mortgage of the Phoenix Insurance Company was unpaid, and was not made a party to the proceedings of foreclosure, by reason of which the lands did not bring as much as they otherwise would have brought.

"VII.That said prior mortgagee has brought an action in the United States court for foreclosure, in which all parties interested are included, that the court may find the amount due to each lien holder.

"VIII.That the plaintiffs agreed, prior to the bringing of this action, to take $ 2,500 and release their claim, and at their request the mortgage for $ 6,350 to the Dakota Mortgage Loan Corporation, to pay the claims of plaintiff and others, was made and placed of record; after which the plaintiffs refused to accept the amount, and the Dakota Mortgage Company refused to release its mortgage, defeating the proposition, and obstructing defendants from procuring it elsewhere, and causing the lands to be sold for less than their true value.

"IX.That the lands should not have been sold in the parcels as returned.

"X.That the lands did not bring two-thirds of the appraised value, but sold for less than their value in cash.

"XI.That the mortgagors are in a position not to redeem on account of the lien of the Dakota Mortgage Loan Company, which is in collusion with the plaintiffs; and after paying the commission to that company there is due from it sufficient to discharge the prior liens against the lands.

It appears from the record, that the sale of the mortgaged premises, in this action, was duly confirmed by regular proceedings in open court on the 24th day of May, 1888.

On the 14th day of June, 1888, the Hon. Isaac Powers, Jr., judge of said court, by an order at chambers, after reciting that it had been made to appear on behalf of said defendants that they had been unable, without fault on their part, to secure the settlement of a bill of exceptions in said cause, within the time allowed by law, extended such time and allowed them forty days from said date in which to prepare such bill of exceptions, and submit the same to the adverse party, or his attorney, for examination and amendment.This order was made upon the affidavit of Phoebe Cooley, one of the defendants in the case, which affidavit is in the...