Nebraska Loan & Trust Co. v. Hamer

• Court: Supreme Court of Nebraska
• Citation: 40 Neb. 281,58 N.W. 695
• Parties: NEBRASKA LOAN & TRUST CO. v. HAMER ET AL.
• Decision Date: 17 April 1894

40 Neb. 281
58 N.W. 695

NEBRASKA LOAN & TRUST CO.
v.
HAMER ET AL.

Supreme Court of Nebraska.

April 17, 1894.

Syllabus by the Court.

[58 N.W. 695]

1. In an appeal from an order confirming a sale in a foreclosure case, the transcript in this court containing none of the record prior to the decree, assignments of error relating to the propriety of the decree will be disregarded.

2. Where land was sold under an order of sale, the sale vacated for irregularities, and an alias order of sale issued, on which there was a new appraisement, higher than the first, held, that the making of the second appraisement was not a valid objection, on the part of the mortgagor, to the confirmation of the sale.

3. A sale will not be vacated for inaccuracies of recitals in the published notice which were in no way prejudicial to the parties or the purchaser.

4. The only land held by one of the appraisers was originally conveyed to him, as security for a debt, by deed absolute in form. Subsequently, and before the appraisement, he paid further money to the grantor, under the agreement that the deed should thenceforth be treated as absolute. Held, that this constituted a conveyance of the land, and that he was a freeholder.

5. Whether the qualifications of an appraiser may be impeached by parol evidence to show that a deed to him, absolute on its face, was in fact a mortgage, quaere.

6. A sale will not be vacated because one of the appraisers misconceived the manner of estimating the value of the property, where it does not appear that such misconception resulted in an unfair appraisement.

7. The courts cannot interpose to prevent creditors from enforcing their claims, or to set aside judicial sales to satisfy debts, because of depression in business, or financial stringency.

8. An order of confirmation may be made at an adjourned term of court, and at any reasonable time after the return of the order of sale, even though such return be made before the expiration of the full period permitted for that purpose.

9. Applications for continuances or postponements of hearings are addressed to the discretion of the court, and will not be reviewed, except for abuse of discretion.

10. A judicial sale must be made in accordance with the decree of the court, and its terms cannot be changed by agreement of parties or counsel not incorporated into the record.

11. The officer conducting a sale is not required to entertain any bids coupled with conditions not in conformity with the terms of the decree.

12. Until a bid is accepted, it is a mere proposal, and may be withdrawn by the bidder. After acceptance, it becomes a binding contract, and cannot be withdrawn or changed except under such circumstances as would justify the rescission or reformation of other contracts.

Appeal from district court, Phelps county; F. B. Beall, Judge.

Action by the Nebraska Loan & Trust Company against the Nebraska Land, Stock-Growing & Investment Company and Francis G. Hamer to foreclose a mortgage. Cause dismissed as to Hamer. From a judgment for plaintiff, defendant appeals. Modified.

[58 N.W. 696]

F. G. Hamer, for appellant.

John H. Casto, for appellee.

IRVINE, C.

This was an action by the Nebraska Loan & Trust Company against the Nebraska Land, Stock-Growing & Investment Company to foreclose a mortgage. The appeal is from the order confirming a sale made under a decree rendered in the action. The transcript filed here begins with the decree, from which it appears that Francis G. Hamer and Rebecca A. Hamer, his wife, were originally parties defendant, but, it appearing that they had conveyed the land to the investment company, the case was dismissed, as to them. The premises mortgaged are described as the W. 1/2 of section 3, township 5 N., range 18 W. of the sixth P. M. The decree finds due the trust company $1,568.70, with interest at 10 per cent. from the date of the decree,--December 30, 1891,--and that the amount is a first lien upon the land. It finds that the trust company has a mortgage to secure notes not due at the time of the decree, amounting to $9,200, with interest from June 1, 1891, and that the amount of $1,568.70 found to be due was delinquent interest on those notes. The decree next finds due the defendant Isaac E. Pierce, on a note and mortgage constituting a second lien, $3,797, with interest at 10 per cent. per annum from the date of the decree, and to the defendant James N. Clarke, on a note and mortgage constituting a third lien, $4,872, with interest at a like rate from the same time. There were two other defendants, the Holdrege Manufacturing Company and C. H. Bogue & Co., whose claims were evidently found to be junior to those named, but reserved for further hearing until the coming in of the report of sale. The decree provides a period of 15 months for redemption, and, in default of payment within that time, orders a sale of the property, or so much thereof as may be necessary to pay--First, the costs; second, the sum found due the trust company; third, the sum found due Pierce; fourth, the sum found due Clarke; fifth, the surplus to be paid into court to abide its further order. And the decree further directs the sale to be made subject to the lien of the trust company for its $9,200 mortgage, with 8 per cent. interest from June 1, 1891. With the propriety of this decree, we have nothing to do. The record prior to the decree is not before us, and we must therefore assume the decree to be in all respects correct. This statement is necessary because some of the objections made to the confirmation of the sale really go to the correctness of the decree, and are clearly not valid if the decree is correct.

An order of sale was issued March 31, 1893, upon which a sale was made, which was on June 24th set aside; and on June 29th another order of sale was issued, upon which a new appraisement was had, and a sale made August 9th. The order of sale was returned August 10th; the sale confirmed August 24th, the court overruling objections filed by the investment company to the confirmation of the sale, and its motion to set the same aside. In view of the fact that the investment company assigns 65 reasons why the sale should be set aside, we will probably be excused from discussing each assignment at length. As already stated, some of the objections really go to the validity of the decree, and not to the regularity of the sale. Others are based upon allegations of fact, which an inspection of the record shows to be without any support whatever. As an instance of the former class, we may cite the assignment that the holders of mechanics' liens should have been brought into court, and their liens ascertained, before the premises were sold. The certificate of liens shows that the mechanics' liens referred to must be the liens of the Holdrege Manufacturing Company and C. H. Bogue & Co.; parties who were evidently in court, and their priorities, at least, adjusted in the decree. If the decree were erroneous for not determining these liens in full before the sale was ordered, there should have been an appeal embracing all the proceedings. As an instance of the latter class, we may cite the objection that the appraisement was not made until after the notice of sale had been published. The record discloses that the appraisement was made July 1st, and the first publication of the notice of sale was July 5th. These are but instances of a number of objections, and are cited only to show their nature, and the futility of considering all the objections in the opinion.

There are several objections based upon the fact that the sale was not made under the appraisement had under the first order of sale. This objection is based upon sections 495 and 509 of the Code of Civil Procedure, which provide for a new appraisement where lands shall have been twice advertised and offered for sale, and remain unsold for want of bidders. This provision was for the benefit of the party to satisfy whose lien the sale is made, in order to obtain a lower appraisement. Here the land did not remain unsold for want of bidders, but was sold, and the sale vacated for irregularities. Within the time limited by section 510 of the Code for the return of the writ, no new sale could have been had under the old order; and the issuing of a new order of sale, and the making of a new appraisement, were not necessarily improper.

[58...