109 Neb. 759 | Neb. | 1923
Plaintiff has appealed from a decree dismissing her application for a 'deficiency judgment, after a judicial sale and confirmation thereof in a foreclosure action.
Plaintiff brought action against James L. Walsh, his wife, Mary E., Prank M. Gross, and his wife, Bessie A., to foreclose two mortgages which had been executed by Walsh and wife. After the execution of the mortgages, Walsh and wife conveyed the mortgaged premises by
On a trial -of the issues thus presented, - the district court found . that, subsequent to the sheriff’s sale,' an agreement' whs entered into between plaintiff and 'defendants, to the effect that defendants would refrain from filing any objections to the confirmation of said sale in consideration - of plaintiff waiving and relinquishing her right to ask for a deficiency judgment in said case against defendants; that ■ defendants belied - on ■ said agreement and did not file objections' to- ■ confirmation of sale; that plaintiff purchased the land at' sheriff’s, sale for $750, and that the land was at'the time reasonably worth $1,600. The court sustained the objections and denied plaintiff a deficiency judgment. ”
1. The first legal proposition' advanced- by- plaihtiff for a reversal is that the decree ■ in the foreclosure case' is a final determination; that all of'the defendants arh liable for any deficiency remaining' after "applying the proceeds of the land on the amount found due'to plaintiff in that decree, and that it is not subject' to review on objections to a deficiency judgment. ' She .cites, in support of her contention, Parratt v. Hartsuff, 75 Neb. 706; Patrick v. National Bank of Commerce, 63 Neb. 200; Devries v. Squire, 55 Neb. 438; Stover v. Tompkins, 34 Neb. 465; Dodge v. Healey, 103 Neb. 180.
We think none of the cases cited goes further' than to hold* that: “Where, in a petition filed to obtain’the foreclosure of a mortgage, facts are alleged' showing a
In the instant case, the matters that are set up to defeat a deficiency judgment are not matters that existed at the time of the entry of, the decree, but arose by virtue of an agreement that was made after the sale and before confirmation. Findings of facts in a decree of foreclosure, showing defendants personally liable for any deficiency, relate only to the facts then existing, and do not operate to preclude defendants from setting up, as a defense, facts arising after entry of decree.
2. It is claimed that the order confirming the sale was a final determination that the land sold for a fair price, and that inadequacy of price could not be raised as an objection to a deficiency judgment. The proposition may be conceded to be sound* but it does not follow that inadequacy of price would not have been a good ground for objecting to confirmation of sale, or that it. would not afford a good basis for a contract between the parties by which' one waived the right to make valid objection to a confirmation, in consideration of the other party relinquishing the right to apply for a deficiency judgment.
3. It is urged that the agreement, being in parol and being made on behalf of plaintiff by her attorney, is in conflict with section 266, Comp. St. 1922, and not enforceable. Said section, so far as applicable, provides: ■“An attorney or a counselor has power * * * to bind
It is incumbent on one, not wishing to be bound by evidence made incompetent by statute, to make timely objection when it is offered. It Is too late to raise the objection for the first time in the appellate court.
Plaintiff insists that in any event she was entitled to have judgment entered against James L. and Mary E. Walsh, because they made no objections to the application for a deficiency judgment and were not parties to the agreement between her and Gross. It will be observed that the agreement with Gross was not to relinquish her right as against the Grosses alone, but generally to relinquish her right to a deficiency judgment. The effect of the agreement was that plaintiff should take the land in satisfaction of her decree. The district court did not err in denying plaintiff a deficiency-judgment as against any of the defendants.
Affirmed.