Kane v. Jonasen

55 Neb. 757 | Neb. | 1898

Lead Opinion

Sullivan, J.

In an action brought by Kane against Jonasen, the district court for Douglas county rendered a decree of foreclosure, and directed the sale of the mortgaged property, being two lots in the city of Omaha. Confirmation of the sale made in pursuance of the decree was resisted by the defendant on the ground that the lots had not been appraised and sold separately. The objection was overruled and the sale confirmed. The defendant ap-. peals. It does not appear whether the lots are contiguous or disconnected. They may, for aught we know, be used, improved, and occupied as a single tract. As to their situation, condition, and use the record gives no information.

The general rule is that distinct tracts of land sold on judicial process should be separately appraised and sold separately. (Laughlin v. Schuyler, 1 Neb. 409.) But the rule has exceptions, one of which was recognized in Graig v. Stevenson, 15 Neb. 302, where it was held: “The mortgaged premises, consisting of three city lots upen which were situated a dwelling-house and appurtenances, some portion of which extended to and upon each of the said lots, were properly sold in gross, and the sale upheld.” It is undoubtedly within the province of the district court to provide in a decree of foreclosure for the appraisement and sale of mortgaged premises in parcels or on masse, as the best interests of the parties may require. (Macomb v. Prentis., 57 Mich. 225; Geuda Springs Town & Water Co. v. Lombard, 47 Pac. Rep. [Kan.] 532; Montague v. Raleigh Savings Bank, 24 S. E. Rep. 6, 118 N. Car. 283.) And, if no direction in relation to the matter is conlained *759in tbe decree, tbe officer charged with its execution is vested with discretionary power, and bis action in tbe premises will be sustained, in tbe absence of an affirmative showing of prejudice by tbe complaining party. (Hughes v. Riggs, 36 Atl. Rep. [Md.] 269; Johnson v. Garrett, 16 N. J. Eq. 31.)

It is quite possible that a separate sale of tbe lots here in question was neither practicable mor advantageous to either of tbe parties. We have no means of knowing what considerations influenced tbe action of tbe person commissioned to make tbe sale. We will presume, however, in tbe absence of evidence to tbe contrary, that be was regardful of tbe rights of tbe parties, and in a lawful manner discharged tbe duties which be assumed. Tbe order appealed from is

AFFIRMED.





Concurrence Opinion

Norval, 3.

I concur in tbe judgment of affirmance on tbe ground that the record fails to show that tbe lots were not contiguous.