Norton v. Taylor

• Decision Date: 26 October 1892
• Citation: 53 N.W. 481,35 Neb. 466
• Parties: NORTON v. TAYLOR ET AL.
• Court: Nebraska Supreme Court

35 Neb. 466

53 N.W. 481

NORTON

v.TAYLOR ET AL.

Supreme Court of Nebraska.

Oct. 26, 1892.

Syllabus by the Court.

1.It is a well-settled rule that the doctrine of caveat emptor applies to all judicial sales, subject to the qualifications that the purchaser is entitled to relief on the ground of after-discovered mistake in material facts or fraud, where he is free from negligence.He is bound to examine the title, and not rely upon statements made by the officer conducting the sale as to its condition.If he buys without such examination, he does so at his peril, and must suffer the loss occasioned by his neglect.Maxwell, C. J., dissenting.

2.A purchaser at a mortgage foreclosure sale will not be relieved from completing his purchase on account of defective title, or on the ground of there being prior incumbrances on the property, when the true condition of the title is fully set out in the pleadings and the record of the proceedings under which the sale was made, as he is chargeable with notice of such material facts as the record discloses.

Error to district court, Butler county;POST, Judge.

Motion by W. C. Norton against Byron E. Taylor and others to vacate and set aside a sale of land on a decree of foreclosure on the ground that Norton was induced to make the purchase by misrepresentations.The motion was overruled, and Norton was ordered to pay into court the amount of his bid.To reverse this order, he brings error.Affirmed.S. S. McAllister, for plaintiff in error.

Steele Bros., for defendants in error.

NORVAL, J.

The Nebraska Loan & Trust Company brought suit in the district court of Butler county against Byron E. Taylor and Lela A. Taylor, his wife, to foreclose a mortgage upon the S. 1/2 of section 12, in township 15 N., of range 1 E., 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 that there was due the loan and 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 6 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 reversesaid 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 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 bear 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 Serg. & R. 225;Vattier v. Lytle's Ex'rs, 6 Ohio, 478;Lewark v. Carter, 117 Ind. 206, 20 N. E. Rep. 119;Corwin v. Benham, 2 Ohio St. 36;Mason v. Wait, 4 Scam. 127,Bishop v. O'Conner, 69 Ill. 431;Sackett v. Twining, 57 Amer. 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, where 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, certificates of liens, or notice of sale, he would have ascertained that Washington Quinlin had a first lien upon the premises for $3,000 and interest, and that the sale was to be made subject thereto.If Norton was deceived, it was the result of his own negligence in not taking the precaution to examine the records.He is chargeable with knowledge of their contents.Equity will not relieve a purchaser of his own negligence.Roberts v. Hughes, 81 Ill. 130;Vanscoyoe v. Kimler, 77 Ill. 151;Riggs v. Purcell, 66 N. Y. 193;Preston v. Breckinridge, 86 Ky. 619, 6 S. W. Rep. 641;White v. Seaver, 25 Barb. 235;Eccles v. Timmons, 95 N. C. 540;Weber v. Herrick, (Ill. Sup.)26 N. E. Rep. 360;Dennerlein v. Dennerlein, (N. Y. App.)19 N. E. Rep. 85.

In Eccles v. Timmons, supra, it is held that a purchaser at a judicial sale will not be released from his bid on the ground that the title is imperfect, when the true state of the title is set out in the pleadings under which the sale was made.Dennerlein v Dennerlein, (N. Y. App.)19 N. E. Rep. 85, was a partition sale.The property was described in the proceedings and in the notice of sale by metes and bounds, and as “containing 31 acres, be the same more or less.”Prior to the sale, handbills were issued in the name of the referee who made the sale, in which the boundary lines of the premises were omitted, and the property described as the farm of “the late John Dennerlein, containing 31 acres.”The purchaser, in bidding upon the property, relied upon the...