Sanford v. Anderson

Decision Date22 October 1902
Citation92 N.W. 152,3 Neb. [Unof.] 561
PartiesSANFORD v. ANDERSON ET AL.
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

Commissioners' opinion. Department No. 3. Appeal from district court, Saunders county; Good, Judge.

“Not to be officially reported.”

Action by Whitfield Sanford against John Anderson and others. Judgment for plaintiff. Defendants appeal. Reversed.B. E. Hendricks, for appellants.

M. B. Reese and Harry Reese, for appellee.

DUFFIE, C.

The appellee foreclosed a mortgage upon the farm of the appellant, consisting of 160 acres, upon which he resided with his family. The decree recites that the amount due upon the mortgage was $6,252.30, with 10 per cent. interest thereon from January 10, 1898. The land had been sold for taxes prior to the foreclosure proceedings, and the amount due upon this tax lien, which was foreclosed in the same action, was $173.08, together with the sum of $17.30 as attorney's fees, which was decreed to be a first lien on the premises. After the expiration of the statutory stay requested by the appellant, a sale was had, the sale confirmed by the court, and the defendant took an appeal to this court from the order of confirmation. This order was recently affirmed. The land sold for $6,200, leaving a deficiency of $240, together with accrued interest. In March, 1901, and pending the appeal from the order of confirmation, the plaintiff and appellee applied to the district court for the appointment of a receiver, and upon the hearing the court found that the defendant was entitled to the use of a portion of said land as a homestead, and that either of the four 40-acre tracts of which the farm consisted was worth more than $2,000, and ordered “that the defendant shall, within 15 days from this date, file in this court a statement of the selection of 40 acres of said land, and that the same shall not be included within this order, and that F. J. Kirchman is herebyappointed receiver of the remaining portion of the farm.” At a later day in the term, upon a showing that the orchard and the dwelling house and other buildings were situated upon two different 40-acre tracts, the court made the following order: “It is therefore considered and adjudged and decreed by the court that said decree be, and is hereby, modified; that the whole of the northeast quarter of the northeast quarter of section 22, and so much of the northwest quarter of the northwest quarter of section 22, all in township 14, range 8, Saunders county, Nebraska, as is actually occupied by the dwelling house, outhouses, sheds, etc., and the orchards, not exceeding in amount five acres of the last-named tract, be, and the same are hereby, set off and apart by the court as the homestead of these defendants pending appeal, and the same are hereby exempted from the order of the court made on March 4, 1901, appointing a receiver in said cause. Said decree of March 4 shall in all other respects remain in full force and effect.” The defendants took an exception to this order, filed a supersedeas bond, and brought the case to this court upon appeal.

At the hearing a large amount of testimony was offered as to the value of the premises. The evidence we consider wholly immaterial. The land had been sold to the plaintiff and appellee for the sum of $6,200. This sale determined the amount to be realized by the plaintiff in his capacity of mortgagee. In case of redemption, he could realize no more than this, and this was the amount to be credited upon his decree on final confirmation of the sale, regardless of the real value of the premises. This being so, the defendant was liable to him for the deficiency, and under ordinary circumstances a receiver might probably have been appointed. The premises were, however, the homestead of the defendant, and this court has lately taken strong grounds against putting the homestead of a mortgagor in the hands of a receiver pending proceedings to foreclose the same, holding, in effect, that the mortgagee must be content with the ordinary relief offered him by the courts, and that the extraordinary remedy of appointing a receiver would not be allowed. Association v. Smith, 58 Neb. 469, 78 N. W. 938, 76 Am. St. Rep. 108;Laune v. Hauser, 58 Neb. 663, 79 N. W. 555. In the case first above cited it is said: “In our state the legislature saw fit, and it is...

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