Norton v. Nebraska Loan & Trust Company
| Decision Date | 26 October 1892 |
| Citation | 53 N.W. 481,35 Neb. 466 |
| Parties | W. C. NORTON v. NEBRASKA LOAN & TRUST COMPANY ET AL |
| Court | Nebraska Supreme Court |
ERROR to the district court for Butler county. Tried below before POST, J.
AFFIRMED.
S. S McAllister, for plaintiff in error, contending that the bidder at foreclosure sale, having acted under mistake, and on misrepresentation of the sheriff as to title, should be relieved from the performance of his bid, cited: Paulett v. Peabody, 3 Neb. 196; Frasher v. Ingham, 4 Id., 531; Laight v. Pell, 1 Edw. Ch. [N. Y.] 577; Yates v. Little, 6 McLean [U. S. C. C.], 511.
Steele Bros., contra: Court of equity will not interfere where party seeking relief is guilty of negligence. (2 Pomeroy, Eq. Jur 839; Young v. Morgan, 13 Neb. 48.) Neglect of purchaser to examine records deprives him of right to relief. If he knew of the defect, or from pursuing inquiries suggested by the pleadings, or the notice of sale, would have known it, he is not entitled to be relieved. (2 Freeman, Executions, sec. 304k.) Equity will not grant relief for mistakes of law. (Smith v. Pinney, 2 Neb. 144; Boggs v. Hargrave, 16 Cal. 559; Spafford v. Janesville, 15 Wis. 526; Landon v. Burke, 33 Id., 453.) The return shows the bid was unconditional, and it is conclusive. If the sale was conditional the return is wrong, and the bidder's remedy is against sheriff for false return. The rule caveat emptor applies in all its rigor to judicial sales.
NORVAL, J. POST, J., did not sit. MAXWELL, CH. J., dissenting.
The Nebraska Loan & Trust Co. brought suit in the district court of Butler county against Byron E. Taylor and Lila A. Taylor, his wife, to foreclose a mortgage upon the south half of section 12, in township 15 north, of range 1 east, executed by the Taylors, which mortgage was junior and subject to a prior mortgage of $ 3,000, on said real estate, owned and held by one Washington Quinlin. The court found there was due the Loan & Trust Company on its mortgage the sum of $ 1,056.60; that said Quinlin had the first lien on said premises for $ 3,000 with interest thereon at six per cent from July 1, 1888, and a decree of foreclosure was rendered, which directed the sale to be made subject to the lien of Quinlin. Subsequently an order of sale was issued, and the land, after being duly appraised and advertised, was sold by the sheriff to one W. C. Norton, the plaintiff in error herein, for the sum of $ 2,535. The sale was reported by the sheriff to the court and the same was approved and confirmed. Shortly thereafter, at the same term of court, the purchaser filed a motion to vacate and set aside the sale on the ground that he was induced to purchase the property by reason of certain representations made by the sheriff and the clerk of the district court as to the character of the title the purchaser would acquire. The motion was overruled, and Norton was ordered to pay into court the amount of his bid. To reverse said order Norton prosecutes a petition in error to this court.
It appears from the affidavits filed in support of the motion to set the sale aside, that Mr. Norton came to the place where the sheriff was offering the property for sale, and inquired what he was selling, to which the officer replied that it was the B. E. Taylor land, and requested Norton to make a bid thereon; that Norton thereupon asked what amount must be bid to get the land, to which the sheriff replied that under the appraisement it could not be sold for less than $ 2,533.60, as that was two-thirds of the appraised value, and that by paying said sum he would acquire a good and perfect title to the land, free from all liens; that the sheriff and Norton then went to the office of the clerk of the district court to ascertain what amount was against the land, and the clerk, after examining the papers, told Norton he would have to bid $ 2,533.60 to get the land, but he had better make the bid $ 2,535 even, and thereby get a little above two-thirds of the appraised value; that the payment of said sum would clear the land of all prior liens and incumbrances; that relying upon said statements Norton made a bid of $ 2,535, and the land was struck off to him at said sum.
On the next day, the sheriff, on meeting Norton, said to him that the amount of his bid was not two-thirds of the appraisement; that the land had been appraised at $ 4,800 and could not be sold for less than $ 3,200, and that unless Norton would raise his bid to said sum he could not have the land; whereupon Norton replied he would not bid the sum of $ 3,200, and the sheriff then stated that such sale must be declared off. It also appears that the statements of the sheriff and clerk were innocently made and without any intention to mislead or deceive the purchaser. It is also shown by uncontradicted testimony that the land was well worth $ 6,400.
The object and purpose of the plaintiff in error is to set aside a sheriff's sale on the ground that he did not thereby acquire the title which he at the time supposed he was purchasing. No claim is made that either the plaintiff in foreclosure, or Taylor, or his wife, was guilty of any fraud, or that any representations were made by either of them to Norton, as to the character of the title to the land, or that they had any knowledge at the time of the purchase of the statements and representations made by the clerk and sheriff. The only proposition presented is whether the fact of the sheriff and clerk having represented to Norton that, if he would buy the land, he would get a clear and perfect title thereto, free from liens, although such representations were untrue, was sufficient to require the court to set aside the sale. In our view, under the facts disclosed by this record, and the law applicable thereto, plaintiff in error is not entitled to any relief. Ordinarily a purchaser at sheriff's sale takes all risks. He buys at his peril, and if the title is bad, he must stand the loss. The rule of caveat emptor applies in all its force to all judicial sales. The court undertakes to sell the title of the defendant, such as it is, and it is the duty of the purchaser to ascertain for himself the character of the title he is about to acquire. (Miller v. Finn, 1 Neb. 254; Smith v. Painter, 5 Serge. & R. 225; Vattier v. Lytle's Exrs., 6 Ohio 477; Lewark v. Carter, 117 Ind. 206, 20 N.E. 119; Corwin v. Benham, 2 Ohio St. 36; Mason v. Wait, 5 Ill. 127, 4 Scam. 127; Bishop v. O'Conner, 69 Ill. 431; Sackett v. Twining, 57 Am. Dec. 599; Lynch v. Baxter, 4 Tex. 431.)
An exception to the rule above stated, recognized by the weight of authorities, is where the purchaser has been induced to bid by fraud, or under a mistake of fact. A. purchaser will be released from the sale on the ground of a mistake of fact, when the mistake is not the result of his own negligence, if application therefor is made at the proper time; but he will not be released from his purchase on his mere ignorance or mistake of law. (Haden v. Ware, 15 Ala. 149; Burns v. Hamilton, 33 Ala. 210; Hayes v. Stiger, 29 N.J.Eq. 196; Upham v. Hamill, 11 R.I. 565.) The facts do not bring the case at bar within the exception to the rule, so as to entitle Norton to have the sale set aside. Neither the clerk nor sheriff misrepresented any material fact concerning the condition of the title. They did not inform the purchaser that there were no incumbrances upon the property, nor does Norton claim that he was not aware of there being a prior mortgage of $ 3,000 on the premises at the time he made his bid. The clerk and sheriff supposed that the sale would extinguish all incumbrances and that the purchaser would acquire a perfect title to the property. In so informing Norton, they misstated the law, or the legal effect of the foreclosure proceedings and sale, and for which the law affords no relief.
We think plaintiff in error is concluded by his own neglect. He had no right to rely upon the statements of the clerk and sheriff, but should have had the title and the proceedings under which the sale was made examined for himself, before he made his bid. Had he done so, he would have been fully apprised of the condition of the title. The records of the county and of the court are open to inspection to every one and these records disclose the objection now urged to the title of the lands. Had an examination been made of either the petition to foreclose the mortgage, the decree, the appraisement, certificate of liens, or notice of sale, he would have ascertained that Washington Quinlin had a first lien upon the premises for $ 3,000 and...
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