Pope v. Benster

• Decision Date: 16 October 1894
• Parties: POPE v. BENSTER.
• Court: Nebraska Supreme Court

42 Neb. 304

60 N.W. 561

POPE

v.BENSTER.

Supreme Court of Nebraska.

Oct. 16, 1894.

Syllabus by the Court.

1. Where the owner of a judgment which has, to his knowledge, been paid, but which has not been satisfied of record, and which judgment remains an apparent lien upon the real estate of another person, causes an execution to be issued on said judgment, the real estate upon which it is an apparent lien to be levied upon and sold, such sale to be confirmed, and a conveyance therefor to be executed and delivered to the purchaser at such execution sale, and accepts the proceeds of such sale, the owner of the real estate so sold may treat such sale as void, and recover the land; or he may, at his election, waive the invalidity of the sale, and sue the owner of such judgment for the value of the real estate.

2. In such action the measure of damages of the real estate owner is the fair market value of his interest in the real estate at the time of the sale thereof on execution.

3. In such an action the owner of the judgment is estopped from asserting, as a defense thereto, that such execution sale and the proceedings subsequent thereto were void.

Error to district court, Merrick county; Marshall, Judge.

Action by Joshua G. Benster against James H. Pope. Judgment for plaintiff, and defendant brings error. Affirmed.John Patterson, for plaintiff in error.

Albert & Reeder and J. C. Martin, for defendant in error.

RAGAN, C.

Joshua G. Benster brought this suit to the district court of Merrick county against James H. Pope, alleging in his petition, in substance: That on January 23, 1886, one D. Martin & Co. recovered a judgment against one Phoebe Asher and another in the county court of Merrick county. That Martin & Co. duly sold and assigned said judgment to one John A. Carley. That Carley, in the year 1887, caused a duly-certified transcript of said judgment to be filed and docketed in the office of the clerk of the district court of Platte county, Neb. That on the 8th of March, 1888, said Asher owned the following described real estate, situate in said Platte county, to wit: “The S. W. 1/4 of the S. E. 1/4 of section 17, and the N. W. 1/4 of the N. E. 1/4 of section 20, all in township 16 N., and range 2 W. of the 6th P. M.” That on said 8th of May, 1888, said Asher duly sold and conveyed said real estate to him, the said Benster. That on the 8th of June, 1889, said Carley sold and assigned said judgment to the said James H. Pope. That about March 4, 1890, said judgment was paid in full to Pope, and that he, on said date, entered a satisfaction and discharge of the same in the office of the clerk of the district court of Merrick county, Neb. (It seems that a duly-certified transcript of said judgment had also been filed in the office of the clerk of the district court of Merrick county.) That Pope did not file in the office of the clerk of the district court of Platte county any release and discharge of said judgment. That on April 15, 1890, said Pope caused the clerk of the district court of Platte county to issue an execution on said transcripted judgment, and caused the sheriff of said county to levy the same on the above-described real estate, then and there the property of said Benster, and caused said sheriff to appraise, advertise, and sell said real estate at public auction, to make and raise the amount apparently due and unpaid on said transcripted judgment. That the clerk of said court, in pursuance of the instructions of said Pope, did issue such execution. That the same was by the sheriff of Platte county levied upon said lands. That they were duly appraised, advertised, and sold, and purchased by one McAlister. That the sale was duly reported to the district court of said Platte county, and by said court affirmed; and, in pursuance thereof, a deed of conveyance of said premises was executed by said sheriff to the said McAlister, and the proceeds of said sale paid to and received by said Pope. That, at the time of the sale of said real estate by said sheriff, the said Benster resided in Merrick county, Neb., and had no knowledge or notice whatever of the levy upon or sale of said premises until after such sale had been confirmed, and a deed executed to McAlister in pursuance thereof. The prayer of the petition was for a judgment against Pope for $1,000, as damages. The answer of Pope to this petition, so far as the same need be noticed here, was a traverse or general denial of all the material allegations thereof. Benster had a verdict and judgment for $600, to reverse which Pope brings the case here for review. To...