20 N.W.2d 925 | Neb. | 1945
The County of Nance brought this action in the district court under the provisions of section 77-2039, C. S. Supp., 1941, to foreclose for delinquent taxes on various tracts of real estate located in said county. Collection of delinquent real-estate taxes through court proceedings now appearing in article 19, sections 77-1901 to and including 77-1928, R. S. 1943, are not here involved. The plaintiff’s petition was regular in form, setting forth the description of the land here involved in the first and second causes of action, and that Edward J. Thomas was the owner and in possession of both tracts and in default of payment of taxes for the years 1931 to and including the year 1940, in the aggregate sum of $414.61 on each tract. Petition prayed for an accounting, foreclosure of the liens, and sale of the premises.
The record shows that on March 5, 1942, decree of fore
Appellants contend the trial court erred in setting aside the , sales under the first and second causes of action on the application of the appellee, a stranger to the suit, and in not sustaining the appellants’ motions to confirm the sales.
In this connection, appellants refer to sections 25-328 to 25-330, inclusive, R. S. 1943, to the eifect that any person who has or claims an interest in the matter of litigation, in the success of either of the parties to an action, or against both, in any action pending or to be brought in- any of the
This raises the question as to whether or not, under the circumstances presented, the appellee was privileged to make the bids which he made. We believe the question requires an affirmative answer.
In this respect, appropriate language for our conclusion may be found in the case of State ex rel. Spillman v. American State Bank, 122 Neb. 42, 239 N. W. 214. At the public sale of the bank building a bid was made, and objections thereto were made by a depositor. The district court, on the day fixed for confirmation, directed a resale to be held then and there in open court, whereupon a new bid was made for more than $1,300 over the bid at the public sale. The latter bid was accepted and the sale confirmed. The court, in discussing the matter, said: “The high bidder at such a sale acquires certain rights which must be protected, and he is entitled to a confirmation of the sale if there is no good reason why it should not be confirmed, and the court is faced with the equities due to the one who has made this high bid on the one hand and with the rights of the depositors and the obligations of the officers in charge of the affairs of the bank on the other hand, and this court holds that the district judge, when all the parties were before him in open court, and when it was evident that more money could be received for the depositors, acted within his rights in refusing to confirm the high bid made some days before at the public sale and in confirming the higher bid received in open court * * * .”
It is obvious that the cited case did not require a bidder to intervene in the original action in order to make his bid.
In the case of State ex rel. Sorensen v. Denton State Bank, 126 Neb. 486, 253 N. W. 670, it was held: “Substantially increased offers to receiver for assets of failed bank before confirmation of sale to highest bidder at public sale are sufficient evidence to support a finding of trial court in exercise of its judicial discretion that confirmation should be denied and new sale ordered.”
In the case of Occidental Building & Loan Assn. v. Beal, 122 Neb. 40, 239 N. W. 202, this court held: “There are no restrictions upon the means by which the trial court may satisfy itself that a fair price was obtained at a foreclosure sale or that a subsequent sale would not realize a greater amount.”
In the case of Crews v. Alberts, 124 Neb. 671, 247 N. W. 602, this court held: “Trial court has duty to determine, by unrestricted means, whether at foreclosure sale price is adequate or whether at a subsequent sale more would be realized.”
In the case of First Nat. Bank of Fairbury v. First Trust Co. of Lincoln, 145 Neb. 147, 15 N. W. 2d 386, a bid was made in open court, in a partition action, of <j>l,00Q more than the property had sold for at public sale. A resale was ordered and the bid made in open court was accepted and the sale confirmed.
In the case of Prudential Real Estate Co. v. Hall, 79 Neb. 805, 113 N. W. 243, this court said: “The cause was brought to this court by an appeal from an order vacating and setting aside a sale of real estate, and ordering a resale thereof, for delinquent taxes, pursuant to a decree therefor made in a proceeding for statutory foreclosure under an act of the legislature commonly known as the ‘Scavenger Act.’ =:= * * Yjjg statute pursuant to which this proceeding is had requires of the court the exercise, so far as may be, of the powers of a chancellor in foreclosure cases. It is not doubted that in such cases the court is the vendor, or that he may
In Siekert v. Soester, 144 Neb. 321, 13 N. W. 2d 139, this court held: “Substantially increased offers to a referee for property sold by him, made before confirmation of the sale to the highest bidder, are sufficient evidence to support a finding of the trial court in the exercise of its judicial discretion that confirmation should be denied and a new sale ordered.” The court said: “According to the third doctrine (See 11 A. L. R. note, pp. 417 to 419 inclusive), where there has been an advanced bid before confirmation, the entire matter of confirmation of judicial sales is left with the trial court, to be confirmed or not according to its judicial discretion. This doctrine is the one heretofore approved and adopted by this court. True, in several cases it has been held by this court that a judicial sale will not be set aside on account of mere inadequacy of price, unless such inadequacy is so gross as to make it appear that it was the result of fraud or mistake, or to shock the conscience of the court. But in these cases there was no evidence that others were willing to pay more. See State ex rel. Sorensen v. Denton State Bank, supra.”
The record in the instant case discloses that the bid made by the appellee was approximately 75 percent more than the bid made by Nance County and the appellant, Elsie Pachunka, and furthermore, the values placed on the land by the witnesses who testified at the hearing for such purpose, indicate that the bids so made were grossly inadequate and that in the exercise of sound judicial discretion the court, having an advanced bid of 75 percent more than the original bid, and with the evidence before him as to the value of the land in question, believed that a resale would be more advantageous to the taxpayers generally and to the subdivisions of the government interested in securing their proportionate share of the taxes, and we believe that it is the equitable duty of the court to so use its sound discretion in such respect.
It is further contended by the appellants that section 77-2039, C. S. Supp., 1941, within the contemplation of Dawson County v. Whaley, 134 Neb. 509, 279 N. W. 164, restricted the right of the district court to exercise sound judicial discretion in tax-foreclosure sales, as provided for by such section. This contention is probably made for the reason that this court stated in the opinion that: “Section 77-2039, Comp. St. Supp. 1937, provides a full, complete and definite procedure by which a county may foreclose the lien of certain delinquent taxes.” It was further held: “It is an established rule of construction that special provisions in a statute in regard to a particular subject control general provisions.” The language appearing in section 77-2039, C. S. Supp., 1941, in part is as follows: “At any time after the expiration of two years the court shall, on motion of the county attorney, examine the proceedings, and, if they are found to be correct, and if the subsequent taxes have been paid to date, shall make and enter an order of confirmation, * * * .” It would be extremely unwise so to tie the hands of the district judge as to deprive him of the power to avail of an opportunity so advantageous for the public, and this court will not take so unprecedented a step. The power vested in the district court to exercise judicial discretion in handling a judicial sale is inherent in a court of equity, and of which it may not be deprived by the Legislature, and we hold that the languag-e so appearing in the section of the statute’ is ineffective to take from the district court the inherent power to exercise sound judicial discretion in tax-foreclosure sales, as in the instant case.
In analyzing the case of Dawson County v. Whaley, supra, we find no language stated therein depriving the district court of authority to exercise its sound judicial discretion in determining whether or not bids in foreclosure sales, such
We conclude, for the reasons given in this opinion, that the judgment of the trial court should be affirmed.
Affirmed.