Johnson v. Bemis

7 Neb. 224 | Neb. | 1878

Maxwell, J.

A sale under an order of the court was made of certain real estate belonging to tbe plaintiffs in error, and tbe sale confirmed. Afterwards a motion was filed to set aside tbe order of confirmation upon grounds: First. That tbe sale was unauthorized and void, having been made after tbe return day of tbe order of sale. Second. For errors in tbe appraisement. Third. Because the property was not advertised according to law. Fourth. For other reasons appearing on tbe face of tbe return.

Before any action was bad, on this motion, the plaintiffs in error filed a second motion to set aside tbe order of confirmation assigning as grounds therefor that W. J". Connell, attorney for tbe defendant in error, prior to the sale, bad promised tbe plaintiffs in error that be would bid the full amount of tbe decree at the sale of the premises under the order, unless the same was purchased by some one else at a higher price, that said Connell in purchasing said premises did not bid the amount due on the decree. The second motion was supported by an affidavit of Harrison Johnson, one of the plaintiffs in error, and agent of Minerva Johnson. The motions were overruled by the court, and the .cause brought into this court by petition in error.

The objection that the sale was made after the return day of the order is untenable. Where there is no prohibition in the statute, a sheriff who has levied an execution upon real or personal property of the debtor before the return day of the writ, may sell such property after the return day thereof. Phillips v. Dana, 3 Scammon, 551. Cox v. Joiner, 4 Bibb, 94. Lester's Case, 4 Humph., 383. Logsdon v. Spivey, 54 Ill., 104. Savings Inst. v. Chirm, 7 Bush., 539. Heywood v. Hildreth, 9 Mass., 393. Smith v. Spencer, 3 Ired., 256. Kanev. McCown, 55 Mo., 181. Remington v. Linthicum, 14 Pet., 84. Wheaton v. Sexton, 4 Wheat, 503. Barnard v. Stevens, 2 Aiken, 429. Doe v. Stone, 1 Hawks, 329. Stewart v. Severance, 43 Mo., 322. Taylor v. Gaskins, 1 Dev., 295. Wright v. Howell, 35 Iowa, 288. Guitler v. Martin, 3 Md., 146. Pettingill v. Moss, 3 Minn., 223. Wood v. Colvin, 5 Hill, 230. Moreland v. Bowling, 3 Gill, 500. Devoo v. Elliot, 2 Cai., 243. Bank of Mo. v. Bray, 37 Mo., 194. Freeman on Executions, Sec. 106. And the rule applies to an order of sale of real estate.

The remaining objections set forth in the first motion are too indefinite to authorize the interference of the court. A motion to set aside a sale, or order confirming a sale, should point out specifically the errors complained of. As to the grounds assigned in the second motion, even if the statement is true, that the attorney for the defendant in error before the sale promised to purchase

the premises “ at the full amount called for in the decree, unless the same were purchased by some one else at a higher bid,” it is not sufficient to authorize the court to set aside the sale, there being no fraud or imposition shown. The promise, if made, may have imposed a moral obligation upon the attorney to keep his word, but so far as appears from the record imposed no legal obligation. A fair sale appears to have been had, at which all who desired to bid had an opportunity. There is no complaint that the plaintiff or her attorney prevented any one, desiring to purchase, from bidding, and there is no claim that the premises sold for less than two-thirds of the appraised value. The judgment of the district court must be affirmed.

Judgment aeeirmed.