48 Neb. 779 | Neb. | 1896
Gregor McGregor, defendant in an action of foreclosure of a real estate mortgage, presents this, an appeal from an order of confirmation of a sale, made subsequent and pursuant to the decree of foreclosure, of the property
“1. The property was not sold for a sum equal to two-thirds of its appraised value.
“2. The property, described as lots 5 and 6 of block 25, was appraised at the sum of $275, whereas in truth and in fact such property is worth a sum much greater than the sum of $275, to-wit, the sum of $1,500 and upwards, as shown by affidavits of record in this case.
“3. The incumbrances against said property were not taken into consideration by the appraisers therein, for that the applications for certificates from the county clerk and county treasurer were not required of such officers and gotten by the sheriff until after such appraisement was made.
“4. The interest of defendant McGregor and the other defendants herein were and are not specifically set out and appraised.
“5. The return and record nowhere show the separate interest of defendant McGregor and the other defendants.
“6. The court had no jurisdiction to render a decree against Lemon & McGregor, a partnership, for that such partnership was not sued and was not served with any order or summons from this or any other court in this case to appear and defend, and made no voluntary or any appearance whatsoever in the case. Wherefore defendant McGregor asks that such sale be not confirmed, and for such other relief as equity may require.”
We will notice the objections in the order in which they were stated and numbered in the pleading filed in the district court. Of the portions to be considered we have just given a copy. It is contended that the property did not sell for two-thirds of its appraised value. The sale was of lots 5 and 6 in block 25, and the west fifty feet of lots 5 and 6 in block 43, in the village of Hartington, Nebraska. The first mentioned two lots were given by the appraisers the value of $1,800, and the portions of the lots in block 43 an appraised valuation
The second objection, for certain well-grounded reasons
The third objection was that the applications to the county clerk and county treasurer for certificates in regard to any incumbrances existing against the property were not made and the certificates procured prior to the appraisement, and consequently the incumbrances were not considered by the appraiser’s in perfecting the appraisal of the property. It is asserted in the argument of counsel for appellant that the applications above referred to were not made until the day of appraisement, as is shown by their dates, and that one of the certificates is of date April 7, a day later than the day of the ap-praisement, which, according to copy in the record, was of April 6; and further, that one certificate is without date. Whether these are facts or not we cannot say, as the applications and certificates, or copies thereof, are not of the record here. All that we have is a copy of the appraisement of the property, from which it appears that the incumbrances were deducted in making it, the officer’s return to the order of sale, in which it is stated that the certificates were obtained and filed as required by law, and the finding of the judge that the sale in these, as well as all other particulars, was regular and made and conducted according to law. The conclusion, from our examination of the record, is irresistible that the branch of the objection which was predicated on- an irregularity in obtaining the certificates in respect to incumbrances is devoid of force and must be overruled. As we have before stated, from all that appears in the record here the incumbrances were considered and deducted in making the appraisement, and the judge having made a finding that all things pertaining to the sale were regularly and properly performed, such finding must be held to be sustained by the evidence of record, and this point, raised by the third objection, must be determined as without force and overruled. Furthermore, on this point, it is a fair conclusion to be drawn from the record here that
The fourth and fifth reasons given to effectually bar the confirmation of the sale were that “the interest of defendant McGfregor and the other defendants herein are not specifically set out and appraised,” and that “the return and record nowhere show the separate interest of the defendant McGregor and the other defendants.”
The sixth objection cannot be considered here, for the sufficient reason, if for none other, that there is nothing in the record in this court from which it can be determined whether the matters set forth in the objection as its basis are or were facts or not. If the whole record of the case was before us we might then be enabled to consider the question sought to be presented, but as it is we cannot do so.
Among the findings of the court was the following: “4. That in the appraisal of the property, returned and of record, there is a clerical error, that is to say, the words and figures block twenty-five (25) were inserted by mistake where the words and figures block No. forty-three (43) should appear; and the words and figures block No. forty-three (43) were inserted by mistake where the words and figures block twenty-five (25) should appear; and the foregoing as above set out is a mere clerical error.” And immediately succeeding this portion of the decree was a direction to the sheriff and the appraisers to correct the record of the appraisal to conform to the facts. It is argued that the court should have set the sale aside because of the error in the appraisal, and should not have ordered its correction. The
AFFIRMED.