Viergutz v. Aultman, Miller & Co.

• Decision Date: 15 October 1895
• Citation: 46 Neb. 141,64 N.W. 693
• Court: Nebraska Supreme Court
• Parties: VIERGUTZ ET AL. v. AULTMAN, MILLER & CO. ET AL.

46 Neb. 141

64 N.W. 693

VIERGUTZ ET AL.

v.AULTMAN, MILLER & CO. ET AL.

Supreme Court of Nebraska.

Oct. 15, 1895.

Syllabus by the Court.

One S., the owner of land against which a judgment was an apparent lien, represented to M. that the judgment was a valid lien, and that he would pay the amount due thereon. M., relying upon such representations, purchased the judgment. Held, that S. is estopped from asserting against M. that the judgment is not a lien.

Error to district court, Wayne county; Jackson, Judge.

Action by Aultman, Miller & Co. against Wielhelm Viergutz. Judgment for plaintiffs, which judgment was assigned to Horace McBride, and was levied on land of defendant sold to Julius A. Sanders. From an order confirming the sale of such land, defendant and Sanders bring error. Affirmed.Geo. N. Beels and W. F. Schoregge, for plaintiffs in error.

Mapes & Licey, for defendants in error.

NORVAL, C. J.

The object of this proceeding is to obtain a review of the order of the district court confirming the sale of a quarter section of land sold upon execution. The record discloses that on the 8th day of December, 1890, Aultman, Miller & Co. recovered a judgment in the county court of Wayne county against Wielhelm Viergutz in the sum of $185.62, which was subsequently transcripted to the district court of the county for the purpose of making the same a lien upon the real estate of the debtor in the county. At the date of the filing of the transcript, Viergutz owned 160 acres of land in the county, upon which he resided with his family, as a homestead, and continued so to do until about December 28, 1891, when he sold and conveyed the tract to Julius A. Sanders, one of the plaintiffs in error herein, for $2,500. From said sum the purchaser deducted the amount of all mortgage liens and taxes against the property, and the sum due upon the judgment aforesaid. The remainder of the purchase price was paid to the vendor. In August, 1892, Aultman, Miller & Co. assigned the judgment to Horace McBride, one of the defendants in error, who subsequently caused an execution to be issued on said transcripted judgment by the clerk of the district court, which was levied by the sheriff upon the quarter section in controversy. The land was duly appraised and advertised, and was sold to D. C. Main. Prior to the sale, Viergutz served a notice in writing upon the sheriff, claiming the land exempt as a homestead; and, upon the return of the execution into court, Viergutz and Sanders objected to the confirmation on the ground that the land was not liable to sale upon execution, because it was a homestead when the judgment was obtained and filed, and thereafter until the conveyance to Sanders was made. The objection was overruled, and the sale confirmed.

No question was made in the lower court, nor is any point here urged, as to the regularity of the sale, but it is insisted that...