Vought v. Foxworthy

• Decision Date: 04 January 1894
• Citation: 57 N.W. 538,38 Neb. 790
• Parties: VOUGHT v. FOXWORTHY ET AL.
• Court: Nebraska Supreme Court

38 Neb. 790

57 N.W. 538

VOUGHT

v.FOXWORTHY ET AL.

Supreme Court of Nebraska.

Jan. 4, 1894.

Syllabus by the Court.

1. Appraisers of property for sale under execution act judicially, and on motion to vacate such sale the value fixed by them on the property appraised can only be assailed for fraud. Objection that the appraised value of the property is too high or too low should be made and filed in the case, with a motion to vacate the appraisement, before a sale occurs thereunder.

2. To justify the setting aside of a sale on the ground that the property was appraised too low, the actual value of the property must so greatly exceed its appraised value as of itself to raise a presumption of fraud in the making of the appraisement.

Appeal from district court, Lancaster county; Tebbets, Judge.

Action by Jennie T. Vought against Jefferson H. Foxworthy and another to foreclose a mortgage. There was judgment for plaintiff, with decree of sale. From the order of confirmation, one of the defendants appeals. Affirmed.J. H. Foxworthy and Adams & Scott, for appellant.

B. F. Johnson, for appellee.

RAGAN, C.

On the 9th day of October, 1890, the district court of Lancaster county, sitting in equity, rendered a decree of foreclosure of a mortgage against lots 5 and 6 in block 230 in the city of Lincoln. The amount of the decree was $1,200, and was to draw interest at the rate of 10 per cent. per annum from the date of its rendition. It was in favor of Jennie T. Vought, and against Jefferson H. Foxworthy et al. September 28, 1891, an order of sale was issued, and on November 17, 1891, the land was sold at public auction by the sheriff, to one H. B. Straut, for $350. The land was appraised at $500. November 25, 1891, a motion to confirm the sale was filed by the purchaser and the complainant in the decree; and the court made an order requiring the defendants to the foreclosure proceedings to show cause on Monday, November 30, 1891, why the sale should not be confirmed. On Tuesday, December 1, 1891, no objections to the confirmation of such sale having been made, the court duly confirmed it, ordered the sheriff to execute a deed to the purchaser of the property, and rendered a deficiency judgment against Jefferson H. Foxworthy and Alice Foxworthy for $1,042.07, to draw interest at the rate of 10 per cent. per annum. December 2, 1891, Jefferson H. Foxworthy filed a motion to set aside the confirmation of said sale and said deficiency judgment, on the grounds (1) that the confirmation and deficiency judgment were procured by the fraudulent practices of counsel for Mrs. Vought; (2) that the property was not appraised at anything near its actual value. The court overruled this motion, and Mr. Foxworthy brings the case here.

In support of the first ground of his motion, Foxworthy filed the affidavit of himself and one Wade, stating that prior and subsequent to the sale he had an agreement with Mrs. Vought and her counsel that Foxworthy should pay a certain sum of money in compromise of the decree. If Foxworthy did not make this payment prior to the close of the term of the court then sitting, Vought's counsel should file his motion to confirm in time to procure a confirmation during the term then in session. That on Saturday, November 28, 1891, Foxworthy sent by Wade a note to Vought's counsel. The note is as follows: “Dear Sir: What have you done, as yet, if anything, about the confirmation of the sale in the Vought case? I am going out to my farm to-morrow, and will not be in until Tuesday noon. Answer.” That the counsel to whom this is addressed “told me [[[Wade] to tell Mr. Foxworthy that he had done nothing, as yet, except file a motion for confirmation, but that he would go up to the courthouse Monday, and look after it.” That counsel for Vought had promised Foxworthy to keep him posted on what he (Vought's counsel) was doing, and going to do, in the case. That he relied on counsel's promise, and understood...