Thesing v. Westergren

• Decision Date: 20 December 1905
• Citation: 106 N.W. 438,75 Neb. 387
• Parties: THESING v. WESTERGREN.
• Court: Nebraska Supreme Court

75 Neb. 387

106 N.W. 438

THESING

v.WESTERGREN.

Supreme Court of Nebraska.

Dec. 20, 1905.

Syllabus by the Court.

During the pendency of an appeal from a judgment of the district court confirming a judicial sale, the Supreme Court is vested with jurisdiction to entertain an application to redeem and to determine the amount of redemption money required for that purpose, and where such jurisdiction is exercised, the adjudication of the appellate court incident thereto becomes res judicata.

Commissioners' Opinion. Department No. 2. Error to District Court, York County; Evans, Judge.

Action by Richard Thesing against Andrew Westergren. Judgment for defendant, and plaintiff brings error. Affirmed.Meeker & Wray, and France & France, for plaintiff in error.

F. C. Power, for defendant in error.

JACKSON, C.

The plaintiff in error was the owner of the W. 1/2 of the N. W. 1/4 and the S. W. 1/4 of section 4 in township 12, range 2 W., in York county. This property was incumbered by three separate mortgages. One of the mortgagees instituted foreclosure proceedings in the district court of that county. The holders of the other mortgages appeared by cross-petitions seeking a foreclosure of the mortgages held by them. Proceedings were had resulting in a decree foreclosing all of the mortgages. The property was sold upon the decree and the defendant in error purchased at such sale the E. 1/2 of the S. W. 1/4 for the sum of $2,205; the W. 1/2 of the S. W. 1/4 was purchased by Bertha L. Richardson for $1,800; and the W. 1/2 of the N. W. 1/4 by A. Bothwell, one of the mortgagees, for $1,350. From an order confirming the sale plaintiff in error appealed to this court, and while the appeal was pending applied here for an order permitting him to redeem the entire tract. The application was by motion, which contained this prayer: “And appellants ask the court to fix the amount to be paid by them to each of said purchasers to redeem said tracts of land from said sales.” Jurisdiction of the motion was entertained, and upon the hearing it was ordered that a redemption be allowed from the sale to A. Bothwell upon payment to the clerk of the district court for him the sum of $2,591.92, with 7 per cent. interest from the date of the decree, and all costs; and from the sale to Bertha L. Richardson, by payment to the clerk of the district court interest on $1,200 at 12 per cent., from May 15, 1899, to the date of redemption, and at the same rate on $1,000 from Novemder 18, 1901, to the date of redemption, and a return to said Richardson of the $1,800 purchase money held by the sheriff; and from the sale to the defendant in error herein, upon payment to the clerk of the district court of interest on $2,205 at 12 per cent. per annum from May 15, 1899, to the date of redemption, and upon the return of the principal of the purchase money paid by such purchaser. All of the sums required by the order of the court to be paid as a condition precedent to the redemption were fully paid, and thereafter the orders of confirmation entered by the district court were vacated by this court and the appeal dismissed by final order of the date of December 17, 1901.

On July 30, 1903, the plaintiff in error instituted an original action in the district court of York county against the defendant in error, alleging as a cause of action that preceding the sale of the real estate recited above he entered into an oral agreement with the defendant in error, by the terms of which it was agreed that the defendant should purchase the real estate afterwards purchased by him at the sale, and that the plaintiff should be permitted to redeem the same at any time before final confirmation in the Supreme Court, by paying to the defendant the amount of the purchase money, together with such interest as the defendant might be obliged...