75 Neb. 523 | Neb. | 1906
This proceeding was instituted by the city of Lincoln to vacate or modify a decree of foreclosure of the district
1. It is alleged in the petition that the decree of March 12, 1902, was based on a stipulation of facts which was not the stipulation made by the parties, nor was it a true or correct copy thereof. This allegation was made the basis of a prayer to vacate and set aside the decree. It is strenuously insisted that the district court erred in overruling the appellant’s application for a continuance to obtain testimony to support that allegation. An application for a continuance is addressed to the sound legal discretion of the trial court, and, unless it clearly appears that there has been an abuse of such discretion, the . ruling on that question will be affirmed. Burris v. Court, 48 Neb. 179.
It appears from the record that this proceeding was commenced on the 2d day óf April, 1904; that on the 1st day of the January term, 1905, the court assigned it for trial on the 13th day of February, following; that there- ' after, and seven days before the day fixed for the trial, the appellant, by leave of the court, amended its petition, and the defendant, the Lincoln Traction Company, immediately filed its answer thereto; that on the day of trial appellant filed its motion for a continuance, supported by certain affidavits of counsel, in which it was stated, in substance, that the stipulation on which the decree complained of was rendered was not, as they were informed and believed, the stipulation of facts as made by the parties, nor was it a correct copy thereof; that the stipulation contained many erasures and interlineations ;• that they were informed and believed that the stipulation actually made between the parties was a clean copy without any such interlineations and erasures; that they desired the con
2. The city next contends that it was entitled to an accounting. The basis of that claim is that the city Avith its third lien is in the position of a junior mortgagee; that it was not made a party to the foreclosure proceedings in the federal court, under which the title of the Traction Company to the Street Railway property Avas obtained, and its rights were not affected by that decree; that the Traction Company has only the rights of a senior mortgagee in possession, and must account for the rents and profits of the property. It is contended that this is not thé proper proceeding in which to determine that question, because the poAver of the district court to vacate or modify its oAvn judgments is limited to the grounds enumerated in section 602 of the code. It is unnecessary to discuss that question, because the application must be denied on its merits. It is true that.counsel for the city cite a number of cases, some of which appear, at first blush, to sus*
“After a sale has been made and confirmed and a deed executed and delivered to the purchaser he takes all the interest of the mortgagor in the property. Our statute provides that such deed ‘shall vest in the purchaser the same estate that Avould have vested in the mortgagees if the equity of redemption had been foreclosed, and no other or greater; and such deeds shall be as Amlid as if executed by the mortgagor or mortgagee, and shall be an entire bar against each of them and all parties to the suit in which*527 the decree for such sale was made, and against the heirs respectively and all persons claiming under such heirs.’ * * * In this case the plaintiff was not in possession of the premises as mortgagee, but as owner of the fee, and as such is not liable to account to a junior mortgagee.”
This rule was approved and followed in Higginbottom v. Benson, 24 Neb. 461; Huston v. Canfield, 57 Neb. 345; Orr v. Broad, 52 Neb. 490; and Clark v. Missouri, K. & T. Trust Co., 59 Neb. 53. It is also cited in 2 Jones, Mortgages (6th ed.), sec. 1,118, where it is said: “But if it (the foreclosure) operates not only as an assignment of the prior mortgage, but as a foreclosure of the equity of redemption subject to the junior mortgage, the purchaser standing in the place of the mortgagor or owner of the premises is not liable to account for the rents and profits.” It has also been cited with approval by the supreme court of Indiana in Catterlin v. Armstrong, 79 Ind. 514; Gaskell v. Viquesney, 122 Ind. 244, and by the supreme court of Minnesota in Rogers v. Benton, 39 Minn., 39; 38 N. W. 765. We are satisfied with this rule, and it may be said that it has been so long established in this state that it has become a rule of property, and we see no good reason to depart from it at this time. We are therefore of opinion that in the present proceeding the city is not entitled to an accounting.'
3. The city also insists that the decree in question should be made more definite and certain in the description of the property ordered sold to satisfy its lien. No authorities are cited in sfipport of this contention, and the main complaint is that the numbers of the lots and block on which the power house mentioned therein is situated, are not given. It appears that the city did not complain of the description at the time the decree Avas rendered, and that question was not presented to us on its appeal to this court. So it is doubtful if it can be heard to complain of that matter at this time. But we are of opinion that the decree should more specifically describe the property in question. The record discloses that it is a matter of com
4. The city further contends that it was entitled to have the decree modified, or a supplemental decree entered, declaring that the sale thereunder should be made without' the right of redemption. The decree gives the city a lien on the real estate belonging to the Street Railway Company, and specifically denies its right to a lien on personal property. Section 3, article IX of the constitution, grants the owner of real estate sold for the nonpayment of taxes or special assessments of any character whatever, the right of redemption for a period of two years from the date of sale, and in one of the former appeals in this case it was held that this provision applied to the assessments in question, and was self-executing. Lincoln Street R. Co. v. City of Lincoln, 61 Neb. 109, 142. That holding is decisive of this question, and the judgment of the district court on that point must be affirmed.
5. Counsel for the city have not argued the question of setting aside or vacating the decree of March 12, 1902, in their brief, and we have the right to treat it as waived; but it may be said, in passing, that the facts on which the
When this proceeding was commenced, the city made an application for the appointment of a receiver, but the application was withdrawn, by leave of the court, and made the basis of another action before another judge of the district. So that matter is not presented for our determination in this case. Neither have we decided the questions presented by the defendants relating to matters of practice or procedure in like cases, because we have deemed it best to decide this case on its merits.
After having carefully examined the record and considered all of the questions presented by counsel, we are of opinion that the judgment of the district court was substantially right, and it is therefore affirmed in all things except as to description of the property; that as to said matter the judgment of the district court be reversed, and the cause is remanded, with directions to the trial court to so correct the decree as to more specifically describe said property; and that the appellee recover its costs in this court.
Judgment accordingly.