Roberts v. Robinson

• Citation: 68 N.W. 1035,49 Neb. 717
• Parties: ROBERTS v. ROBINSON ET AL.
• Decision Date: 18 November 1896
• Court: Nebraska Supreme Court

49 Neb. 717

68 N.W. 1035

ROBERTS

v.ROBINSON ET AL.

Supreme Court of Nebraska.

Nov. 18, 1896.

Syllabus by the Court.

1. A judgment debtor owned and occupied with his family 60 acres of land in Webster county, of less value than $2,000. He and his wife conveyed this land to one R. for the purpose of having the latter convey the land to the wife of the judgment debtor. This was done. The judgment against the homestead owner was also against R. In a suit to subject said land to the payment of said judgment, held: (1) That the motive which influenced the homestead owner in having the title of this land conveyed to his wife was an immaterial inquiry, as the property was not susceptible of a fraudulent alienation; (2) that R. did not own the real estate, but held the legal title in trust for the wife, and that the latter, by the conveyance from R., did not take the land burdened with the judgment.

2. The deed to R. was actually acknowledged in Nuckolls county before a notary public thereof, but by mistake he certified that he was a notary public of Webster county, where the deed was recorded. Held: (1) That the rights of the judgment creditor were not affected by this mistake of the notary public; (2) that the deed, having been actually signed, acknowledged, and delivered, conveyed the legal title to R.

3. Where the legal title to real estate is in the name of the judgment debtor, nevertheless the lien of a judgment against him attaches only to the actual interest which he has in the real estate.

4. If there has been fraud or unfairness, irregularity, or disregard of the statute in making a judicial sale, the district court is invested with the discretion to set such sale aside.

5. But when such sale has been fairly conducted and made; when all the provisions of the statute have been complied with; when the property has been sold for two-thirds of its appraised value, and the sale has been duly reported to the court, and no objections are interposed to its confirmation,--the district court has not the discretion to arbitrarily set such sale aside, but should confirm it.

Appeal from district court, Webster county; Beall, Judge.

Action by Caroline F. Roberts against Cornelius N. Robinson and others to foreclose a mortgage, in which there was a decree for plaintiff. From that part of the decree denying them a lien on the property, and from an order setting aside the foreclosure sale, defendant William Deering & Co. appeals. Reversed in part.Capps & Stevens and Lewis C. Spooner, for appellant.

J. S. Gillham, for appellees.

RAGAN, C.

In a justice court of Webster county, William Deering & Co., in February, 1888, recovered a judgment against C. N., J. Q., and A. L. Robinson. A transcript of this judgment was at once filed and docketed in the office of the clerk of the district court of said county. In November, 1888, C. N. Robinson and his wife, Mary, conveyed by warranty deed a tract of land in Webster county to the said A. L. Robinson. In December, 1888, A. L. Robinson conveyed this real estate to the said Mary Robinson. Something like a year after this last conveyance C. N. Robinson and wife removed to the state of Missouri, it seems, with the intention of making that their future home; and while there, in September, 1891, sold and conveyed the real estate mentioned above to one W. B. Guthrie, who took possession of the same. While C. N. Robinson owned the real estate he mortgaged it to one Roberts, and the latter brought this suit to the district court of Webster county to foreclose. C. N. Robinson and his wife, Mary, W. B. Guthrie, the owner of the equity of redemption, and William Deering & Co. were made parties defendant. Service was obtained upon Deering & Co. by publication, and, they having failed to appear, their default was entered, and a decree of foreclosure rendered as prayed. In due time the land was sold by the sheriff, and purchased by Deering & Co., and the sale reported to the court. After this was done, Deering & Co. made application to the court to set aside the default entered against them, alleging, inter alia, that their said judgment against the Robinsons was a lien upon this land, subject only to the lien of the mortgage foreclosed. The court seems to have vacated the default. Pleadings were filed, and the issue made up and tried as to whether the judgment of Deering & Co. was, or had ever been, a lien upon the real estate. The court found and decreed that the judgment of Deering & Co. was not a lien, and had never been a lien, upon the real estate involved in the foreclosure suit. Upon the court's decreeing that Deering & Co. had no lien upon the real estate, they moved the court to confirm the sale of the real estate made to them by the sheriff. This the court overruled, and upon its own motion set aside the sale. Deering & Co. have appealed from the decree of the court denying them a lien upon the real estate, and from the order setting aside the sale.

1. The evidence shows without contradiction that the tract of land owned by C. N. Robinson in 1888, when the judgment of Deering & Co. was rendered, consisted of about 60 acres, was of less value than $2,000, and was then occupied by himself and wife as a homestead; that in November, 1888, Robinson and his wife conveyed the land to A. L. Robinson for the sole purpose of having the latter convey it to Mary Robinson, the wife of C. N.; and that in December, 1888, A. L. Robinson did convey the title to C. N.'s wife. Since this real estate was the homestead of C. N. Robinson and his wife, the judgment of Deering & Co. was not a lien upon it. The land, being a homestead, was exempt from sale on execution, and, while the judgment of Deering & Co. was an apparent lien, the homestead was not liable to be taken and sold to satisfy it. It is immaterial what the motive of C. N. Robinson was in having the title to this land vested in his wife, as that motive could not affect the conveyance....