Kampman v. Nicewaner

60 Neb. 208 | Neb. | 1900

Sullivan, J.

Annie K. Kampman employed H. I). Kelly, Esq., of the Madison county bar, to, act for her in foreclosing a mortgage covering real estate situate in Antelope county, and directing him, in case the property should be sold under a decree of the court, to bid the amount of her claim, but under no circumstances to bid more than that amount. In pursuance of his employment, Mr. Kelly, in behalf of his client, commenced an action in the district court against the owner of the land and others having interests therein, obtained a decree of foreclosure, and caused an order of sale to be issued for its enforcement. He then wrote H. L. McGinitie of Neligh as follows:

“An order of sale has been issued in the case of Annie K. Kampman vs. Bascom Nicewaner in the district court, of your county and is no donbt now being advertised for sale. Will you kindly look the matter up and bid the land in in the name of the plaintiff for two-thirds of the appraised valuation in case there are no other bidders, but in case there are other bidders, then bid the land up to the amount of our claim and oblige.”

Mr. McGinitie, acting under the authority of this letter, attended the sale and caused the mortgaged premises to be struck off: to Mrs. Kampman for the sum of $934. The appraised value of the property was $1,368.11, and the amount of plaintiff’s claim at the time of the sale was $574.73. After the sale had been confirmed Mr. Kelly discovered that the land had been bought in in violation of his client’s instructions and thereupon, and during the same term at which the order of confirmation was entered, moved the court to rescind its action and direct a resale of the property. This motion was sustained and the sale and appraisement were set aside. The property was afterwards reappraised; its valuation was fixed at $581.97, and it was sold to the plaintiff for $662.31. From an order confirming the second sale, E. C. Coon, the owner of the property, prosecutes this appeal.

Under the circumstances disclosed by the record the court was undoubtedly warranted in revoking the order of confirmation and releasing the plaintiff from her bid; not because the authority conferred upon Kelly, to bid the amount of the mortgage debt, was incapable of being-delegated (Renwick v. Bancroft, 56 Ia., 527; Bodine v. Exchange Fire Ins. Co., 51 N. Y., 117; Grady v. American Central Ins. Co., 60 Mo., 116; McKinnon v. Vollmar, 75 Wis., 82), nor becap.se the plaintiff could not be bound beyond the limits of the authority actually given to her agent (Markey v. Mutual Benefit Ins. Co., 103 Mass., 78; Hatch v. Taylor, 10 N. H., 538; Cruzan v. Smith, 41 Ind., 288; Inglish v. Ayer, 79 Mich., 516; 1 Am. & Eng. Ency. Law [2d ed.], 995; Meacham, Agency, sec. 283)-, but for the reason that it is clearly within the power of a court of equity, when justice requires it, and its action is seasonably invoked, to vacate a judicial sale and discharge a purchaser who has become such through fraud, accident or mistake. Paulett v. Peabody, 3 Nebr., 196; Frasher v. Ingham, 4 Nebr., 531; Norton v. Nebraska Loan & Trust Co., 35 Nebr., 466, 40 Nebr., 394; 12 Am. & Eng. Ency. Law [1st ed.], 235; 12 Ency. Pl. & Pr., 89. Foreclosure sales are made by the court, which is always fair and just to those with whom it deals; it is not bound to hold purchasers to the performance of unconscionable contracts, or any contract which has been entered into through a venial error, especially if the rights of third parties have not intervened and the litigants are left where they were before. The fact that there has been a confirmation of the sale is not at all important; that is an adjudication touching only the regularity of the proceedings under the order of sale; it has no relation to such grounds for equitable relief as were unknown to the parties and to the court at the time the order of confirmation was entered. Taylor v. Courtnay, 15 Nebr., 190; MoKeighan v. Hopkins, 19 Nebr., 1.

The trial court was entirely right in, setting aside the sale to Mrs. Kampman and releasing her from her bid, but it was manifestly wrong in vacating the first appraisement. There is no authority in the law for. a second appraisement of property for the purposes of a judicial sale, unless such property shall remain unsold for want of bidders, after having been twice advertised and twice offered for sale under the first appraisement. Sec. 495, Code Civil Procedure; Burkett v. Clark, 46 Nebr., 466; Beardsley v. Higman, 58 Nebr., 257; Scottish-American Mortgage Co. v. Nye, 58 Nebr., 661. There was no attack made on the first appraisement and there existed no legal reason for setting it aside. The order of the court went too far; it deprived appellant, E. C. Coon, of a substantial right; it resulted in his land being sold for less than two-thirds of its laAvfully ascertainéd valuej although such land had never failed to sell, under the first appraisement, for want of bidders. The error indicated rendered all subsequent proceedings irregular and makes a reversal of the second order of confirmation imperative.

Reversed and remanded.