56 Neb. 67 | Neb. | 1898
To an understanding of the points decided in this case a brief statement of the facts is essential. In June, 1891, in the county court of Madison county, F. J. Hale recovered a judgment against John D. Hoover and Luella Hoover, his wife, on a promissory note executed by them. It seems that this note was not given by Mrs. noover with any reference to her separate.estate, trade, or business, nor did she intend to bind her separate estate for its payment; that she received no consideration for signing said note but executed the same as surety for her husband. A transcript of this judgment was duly filed and docketed in the office of the clerk of the district court of said county, and subsequently an execution issued thereon. Under this execution the sheriff levied upon some five acres of land in a certain section 31, the property of Mrs. Hoover. On this land, and constituting its chief value, was a flour mill. The mill was operated by
1. It is first insisted that the property was appraised too low; that it was worth' at least twice the sum at which it was appraised. But the plaintiffs in error filed in the district court no objections to the appraisement made of the property until after it had been sold. After the sale was made it was then too late for the plaintiffs in error for the first time to question the appraisement on the grounds that the same was too low. Objections that real estate seized on execution has been appraised too high or too low should be made and filed in the court from which the execution issued, before the sale occurs, or such objections will be unavailing. (Mills v. Hamer, 55 Neb. 445, and case cited.)
2. A contention of Mrs. Hoover is that the district court should have set aside the sale because she made it appear on the hearing of the objections to the confirmation that she received no consideration for the note which she had signed with her husband; that it was not signed by her with reference to her separate estate, trade, or business. But this .is an argument that Mrs. Hoover was entitled, on the hearing of objections to the confirma
3. As already stated, the tract of school land on which were the mill race, dam, and water power of the mill of Mrs. Hoover was occupied by Mr. Hoover and his family as a homestead; and he complains of the refusal of the district court to set the sale aside because he alleges that this homestead, being less in quantity than 160 acres, and less in value than $2,000, and not being in any incorporated municipality, was not liable to be taken and sold on execution. Mr. Hoover’s contention that his homestead was not liable to sale on execution is conceded, but, as we vícav the case, no part of his homestead was sold under this execution. In the first place the fee simple title to this school land was in the state, and Hoover Avas a mere tenant; and the sale made by the sheriff did not have the effect, and was not intended to" have the effect, of divesting Hoover .of his leasehold interest in this school land. The mill race, the water power, and dam were appurtenances of the mill of Mrs. noover; and, by the sale of the mill, they passed as such appurtenances to the purchaser. These appurtenances constituted an easement on the school land, and we sup
We conclude, therefore, that the mill race, dam, and water power were not included in John D. Hoover’s leasehold interest in the school land, and that these constitute an easement upon that land and appurtenances of the mill property which belonged to Mrs. Hoover. The judgment of the district court is
Affirmed.