Security Mut. Life Ins. Co. v. Herpolsheimer Bldg. Co.
| Decision Date | 05 February 1937 |
| Docket Number | 29792. |
| Citation | 271 N.W. 343,132 Neb. 149 |
| Parties | SECURITY MUT. LIFE INS. CO. v. HERPOLSHEIMER BLDG. CO. ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. In a case where a large business block is greatly in need of repairs, where taxes have accumulated in the sum of $19,027.18, and the receiver had been unable to rent the property, even after expending $7,258.18 in preserving the property, an application to set aside a moratorium and confirm the foreclosure sale may be considered by the court.
2. If under the conditions shown in the evidence, a moratorium would not now be granted under the law, then the court may be justified in setting aside and vacating a moratorium granted in the past.
3. Moratorium stays are at all times under the control of the court, and may be reexamined, and upon good cause being shown may be modified or vacated at any time.
Appeal from District Court, Lancaster County; Broady, Judge.
Action by the Security Mutual Life Insurance Company against the Herpolsheimer Building Company, impleaded with C. E. Reynolds and others. From an adverse decree, the Building Company appeals.
Affirmed.
John H. Comstock, of Lincoln, for appellant.
Fred C. Foster, of Lincoln, for appellees.
Heard before GOSS, C. J., ROSE, DAY, PAINE, and CARTER, JJ., and CHAPPELL and RAPER, District Judges.
This is a foreclosure action, in which the district judge entered a decree on December 18, 1933, finding the amount due upon the mortgage that day to be $121,229.84, with interest at 6 per cent. from that date, together with costs. It was agreed by the parties that the issuance of the order of sale should be stayed for nine months.
The defendants had made application for a moratorium until March 1, 1935, under House Roll No. 600, c. 65, Laws 1933. On October 25, 1934, plaintiff filed motion to confirm the sale made by the sheriff on October 23, 1934, and that sheriff's deed issue.
On November 8, 1934, after a hearing on the application for a moratorium, it was ordered by the district judge that the foreclosure proceedings be stayed until March 1, 1935 further, that the property remain in the possession of the receiver, E. B. Stephenson, appointed June 8, 1933, and that the rents and income from said premises be applied (1) to cost of repairs, (2) to cost of operation of the building, (3) to the payment of the taxes, and that the proceeds above such sums be paid the Herpolsheimer Building Company to the extent of $100 a month, and any net rentals above those amounts be applied on the plaintiff's mortgage, first to the payment of the interest, and then to principal.
On June 26, 1935, the plaintiff filed a motion to set aside the moratorium and to confirm the sale, alleging that House Roll No. 600, c. 65, Laws 1933, had expired, and that House Roll No. 1, c. 41, Laws 1935, was unconstitutional and void.
On September 23, 1935, the defendants filed objections to, and a showing in resistance of, the motion to set aside the moratorium, supporting the same by the affidavits of many parties, and the cause came on for hearing September 30, 1935, before the district judge, who entered an order finding that there was then due upon the decree $134,161.03, and that, in addition thereto, there were unpaid taxes and special assessments aggregating the sum of $19,027.18. The court further found that the receiver had spent $7,258.18 in preserving the property, which amount was advanced by the plaintiff, and that the total amount due from the defendants was $160,446.39, and that the property did not exceed in value the sum of $100,000; that of the collateral security put up with the plaintiff, $7,500 of second mortgage bonds of the Lincoln Improvement Company were in default in the payment of interest, and a real estate mortgage of $12,000, also held as collateral, was in foreclosure, and taxes were unpaid on the security therefor in the amount of $2,000. The court further found that the receiver had received rents of only $1,360, and that the bid of $110,000 made at the sale of said premises was regular, and that said sum was more than the property was worth, and that said sale should be confirmed. The court decreed that the moratorium order, which had been continued in force by a general order of the district court without any hearing, should be set aside and held for naught; that said sale be confirmed and the sheriff directed to place the plaintiff in possession. The motion for a new trial was overruled.
The defendants set out a number of errors for reversal of the judgment of the lower court, the principal ones being that the judgment entered is contrary to law, and is against the weight and preponderance of the evidence. The defendants' evidence disclosed that the H. H. Herpolsheimer Company, while operating a department store in this property some years ago, did at one time a gross business in the neighborhood of $600,000 a year, and members of the Herpolsheimer family testified that the mortgaged real estate was now of a value of from $200,000 to $250,000.
Affidavits of six real estate men, introduced in evidence by the defendants, placed the value of the property at the present time from $140,000 to $160,000, but none of these affiants took the witness-stand for...
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