State Bank of Neb. v. Green

• Decision Date: 18 March 1880
• Citation: 4 N.W. 942,10 Neb. 130
• Parties: STATE BANK OF NEBRASKA v. GREEN AND OTHERS.
• Court: Nebraska Supreme Court

10 Neb. 130

4 N.W. 942

STATE BANK OF NEBRASKA

v.GREEN AND OTHERS.

Supreme Court of Nebraska.

Filed March 18, 1880.

Error from Washington county.

George E. Pritchett, for plaintiff in error.

Carrigan, Redick and Swartzlander, for defendants in error.

LUKE, J.

In the case of State Bank v. Green, 8 Neb. 297, this court held that the deficiency execution now in controversy, under which Green's property in Douglas county was seized and sold, was issued without authority of law, there being on file at the time of its issue an efficient supersedeas bond staying proceedings under the order of the court awarding it. The effect of that decision was to declare invalid the execution, and all that was done under it. The purchasers of that property, therefore, acquired no rights as against Green, and the district court, under the mandate of this court, very properly did what it could, by summary orders, to place all parties in statu quo.

This case is not that of a formal sale on execution under a judgment or order of the court, not superseded, and to which the authorities cited by counsel for the plaintiff would be entirely applicable, but it is one wherein the process of the court having been unjustifiably employed resulted in an injury, for which it was the duty of the court, so far as possible, to cause reparation to be made. In this we do not fail to recognize the doctrine that all rights acquired under a judicial sale, made while the judgment is in force, should be protected, yet it must be understood that this doctrine is properly applicable “only when the power to make the sale is clearly given.” Gray v. Brignardello, 1 Wall. 627.

In all of the cases of sale under execution cited on behalf of the plaintiff, the authority to make them was unquestioned, the point decided being, that the subsequent reversal of the judgment under which the execution issued did not defeat the title acquired by the purchaser at the sale. Loring v. Illsley, 1 Cal. 24;Doe v. Swiggett, 5 Black, 328; McJilton v. Love, 13 Ill. 486. But the rule of these and like cases has no application when the sale itself was without authority, and is subsequently set aside for that reason. There is necessarily a very wide distinction between the reversal of the judgment and the setting aside of the sale of property on execution under it, in the effect produced upon both purchasers and parties. McBain v. McBain, 15 Ohio St. 337. Under our law governing sales of real property on execution, the title of the purchaser depends entirely upon the sale being finally confirmed by the court under whose process it was made, and until this was done the rights of the execution debtor are not certainly divested. Miller v. Hall, 1 Bush, (Ky.) 230. And what we have said of the necessity of a confirmation to divest the owner of real estate of his title, is applicable to the sale of the mill property in Washington county, under the mortgage. This sale appears to have been made October 13, 1877, and a formal order of confirmation was entered on the the sixth of December following, to which Green duly excepted, and on the fifteenth of the same month filed an approved supersedeas bond with the view, ostensibly, of bringing the question of its correctness to this court by appeal.

The appeal, however, was never perfected, but within one year from the entry of the order Green brought it here by proceedings in error, which resulted in a reversal of the order of confirmation, not because the sale was found to have been illegally made, but because of a certain condition embodied in the order which lead this court to the inference that the sale was not entirely satisfactory to the judge of that court. Green v....