56 Neb. 394 | Neb. | 1898
On September 6,1892, the Citizens State Bank >of Council Bluffs filed its petition in the district court of Douglas county asking the foreclosure of a mortgage on a certain described lot in tlie city of' Omaha. In the petition it was alleged that the notes secured by the mortgage sought to be foreclosed, as well as the mortgage itself, were made by George H. Haymes, one of the defendants; that other defendants, among whom was George E. Gage, claimed to have an interest in the mortgaged property by virtue of certain deeds held by them, but it was alleged that whatever interest either of said last referred-to defendants had in said mortgaged property was subject and inferior to the said mortgage. Service by publication of the pendency of the action was completed October 7, 1892, upon certain defendants, among whom Avas said Gage. On December 24, 1892, there wds entered of record the default of all the defendants, and on January C, 1893, there was a decree as prayed. The property affected by the decree Avas duly advertised and sold for the satisfaction thereof to the Citizens State Bank of Council Bluff's on March 21, 1893. On March 29, 1893, tlie sale Avas duly confirmed, and the special master who had conducted it Avas ordered to make a deed to the purchaser of the premises. On May 3,1893, there Avas filed a motion in said court in which George E. Gage asked that the judgment be opened and he be let in to 'defend for the reasons set forth in his affidavit, Avhich affidavit Avas in this language: “George E. Gage, being duly sworn, on oath says, that he is the George E. Gage, one of the defendants in the above entitled suit and one of the parties against Avhom the decree in said cause was rendered; that service was had upon him in said action by publication only; that during the pendency of said action he had no actual notice or knowledge thereof, and that the existence of said action first came •to his knowledge after the sale under the decree entered in
It is provided in section 82, Code of Civil Procedure, how a judgment rendered on service by publication upon the application of a defendant so served may be set aside. It is, however, provided in said section as follows: “But ,the title to any property, the subject of the judgment or order sought to be opened, which by it, or in consequence of it, shall have passed to a purchaser in good faith shall not be affected by any proceedings under the section.” The application to open the judgment was in conformity with the requirements of said section. In the pleading of Gage there was no averment of bad faith in the purchase by the bank. The only fact alleged with reference to the purchase was that the property was bought by the bank for $4,919.38 when it was in fact worth at least $6,000, and this did not impute bad faith, for, if the appraisement was $6,000, the price was more than two-thirds of that sum. By its purchase the bank became vested with title while there was no action pending. (Scudder v. Sargent, 15 Neb. 102; Keene v. Sallenbach, 15 Neb. 200.) Section 82, Code of Civil Procedure, furnishes a special method whereby certain relief may be had, but this, we think, extends no further than the litigation of matters which could have been properly put in issue anterior to the entry of the original decree. There is a saving clause in this section in favor of the rights of bona fide purchasers after decree, but this clause does not provide that the bona fides of the purchase may be determined in proceedings authorized by that section. As there was no action pending after the rendition of judg
Reversed and remanded.