Norton v. Nebraska Loan & Trust Co.

• Decision Date: 02 May 1894
• Citation: 40 Neb. 394,58 N.W. 953
• Parties: NORTON v. NEBRASKA LOAN & TRUST CO. ET AL.
• Court: Nebraska Supreme Court

40 Neb. 394

58 N.W. 953

NORTON

v.NEBRASKA LOAN & TRUST CO. ET AL.

Supreme Court of Nebraska.

May 2, 1894.

Syllabus by the Court.

1. Where a case is brought to this court, on petition in error, to review the decision of the lower court on a motion of a purchaser to vacate the confirmation of and set aside a judicial sale of real estate, only such questions as were presented in the lower court, or to which its attention was called, and its ruling taken or requested, will be reviewed or considered in this court.

2. The former decision in this case (see Norton v. Trust Co., 35 Neb. 466, 53 N. W. 481) approved and adhered to.

On rehearing. Denied.

For former opinion, see 53 N. W. 481.S. S. McAllister and Reese & Gilkeson, for plaintiff in error.

Steele Bros., for defendants in error.

HARRISON, J.

An action was commenced by the Nebraska Loan & Trust Company in the district court of Butler county to foreclose a mortgage on certain real estate situated in said county. Decree was rendered foreclosing the mortgage, order of sale issued, sale made and confirmed, and a motion made by the purchaser to vacate and set aside the sale and confirmation. There also appears to have been a motion by the principal defendant (the mortgagor) for an order on the purchaser to compel him to pay the amount of his bid into court. The motion to vacate the sale was overruled by the lower court, and Norton, the purchaser at the sale, ordered to pay the amount of his bid, as reported by the sheriff in his return to the order of sale, into court. From this order, Norton prosecuted a petition in error to this court, and on the first hearing here the ruling and decision of the lower court were sustained and affirmed; NORVAL, J., writing the opinion; MAXWELL, the then chief justice, dissenting. POST, J., having made the order in the lower court, over which he was then presiding judge, did not participate in the hearing or decision in this court. The opinion of NORVAL, J., affirming the action of the lower court, will be found in Norton v. Trust Co., 35 Neb. 466, 53 N. W. 481; and the dissenting opinion of MAXWELL, C. J., commencing on page 474, 35 Neb., and page 483, 53 N. W. Each of these opinions contained a full and sufficient statement of the case and of the facts necessary to an understanding of the points raised and argued, and we will make no further statement here. Norton made a motion for a rehearing, which was granted, and the case was reargued in briefs filed by counsel for either party.

The main contention in the case is over the question of the application of the rule of caveat emptor to judicial sales. The counsel for Mr. Norton, in the briefs filed at the rehearing, contended that there is a well-settled and marked distinction between sales made under a decree of foreclosure, as was the one in the case at bar, and sales made by virtue of an execution issued to enforce a judgment at law; that in the former the court is making the sales, and the officer acting under its special direction and supervision, and in the latter not, or not so directly. These sales, under our Code, are made under the same rules as prescribed by statute in regard to notice, appraisement, offer, return or report of sale, and confirmation of the same; the only distinction or difference, that we remember or can discover, being that the one is made under and by virtue of an order issued to enforce a decree in an action wherein a specifically described tract of land or piece of property is sought to be subjected to the payment of a debt which it has been mortgagedto secure, and in the other the execution is issued to enforce the collection of a judgment to be levied on any property of the debtor, and is directed against no certain or described tract or piece of property. And for this reason, it is claimed, the purchaser is put to a more direct and special inquiry, as the record in the case in which the execution is issued will not furnish any information regarding the property to be sold, and the papers and records in the mortgage foreclosure case will. In a large number of cases in which decisions have been made in reference to releasing purchasers from their bids, or forcing them to complete purchases, the distinction is clearly and definitely raised and established that sales of particularly described tracts or pieces of property by orders of the court, for any purpose, or in any of the many different proceedings in which such sales may be had, being held more directly within the province of the court, and under its immediate supervision, and the officer acting as its agent, the sales, being considered as made by the court, are judicial sales proper, and as such to be distinguished from sales under execution, and that the doctrine of caveat emptor will not be applied to what, according to these decisions, are judicial sales proper, or sales by the court, in its full force and vigor, but will be given a somewhat modified or relaxed effect, and each case be decided or determined as seems best and...