20 Neb. 605 | Neb. | 1886
This is an action in ejectment, and is before this court the second time j the former decision being reported at page 338, 17 Neb. Rep. On the former trial in the district court •and the proceedings in error in this court, the present plaintiffs in error relied upon a deed executed by the sheriff in •a foreclosure proceeding, some eight years after the sale by his predecessor, and which deed was made in pursuance of •an order of the district court, without notice to the judgment defendant. On the latter trial and the present hearing they rely upon a deed executed by the sheriff who made the sale, and which we presume was made soon after the sale, but the abstract fails to give any information as to its date. The documentary evidence introduced on the trial is not set out. in the abstract, either in form or sub•stance, and our information as to the contents of the paper -referred to is quite meager.
After the cause was reversed by this court, and before ¡the last trial was had, defendant amended his answer, denying the delivery of the first deed by the sheriff, and pleading the statute of limitations.
It seems to be conceded that a decree of foreclosure was ■rendered in favor of Cox, Ballard & Kingman against .McKesson, and that the property in question was sold, by
McKesson testified that he had paid the decree in full, and that the date of payments extended from 1873 to April, 1875. That he paid the money direct to Ballard & King-man, and depended upon them to apply it on the decree; that the decree proper was paid in the latter part of 1874, •and the costs were collected by garnishee process in 1875, •and that he left Nebraska in June, 1876.
The sheriff’s deed was not placed upon record until 1885, .if then, and in the meantime the property was conveyed by mesne conveyances from McKesson to defendant in error..
The principal questions of fact submitted to the jury appear to have been : was the decree of Cox, Kingman & Ballard against McKesson paid by him as he testified, and was the sheriff’s deed ever delivered to Ballard by the sheriff? On both these propositions the jury evidently found in favor of defendant in error; and under the testimony as presented by the abstract, we cannot interfere with these findings.
It is insisted by plaintiff in error that a formal delivery
It is insisted that the district court erred in refusing to give certain instructions asked by plaintiff.
1 The first instruction was as follows: “ The jury are instructed that if you believe from the evidence that King-man & Ballard actually had a sheriff’s deed to the property in conti’oversy, then it is wholly immaterial so far as their case is concerned, what affidavit they made and filed in the matter of obtaining a second deed, and you will, in that event, wholly disregard such affidavit.”
This instruction was properly refused, for two reasons. 1st, Because it wholly disregards the manner in which the deed was obtained; and 2d, The court had instructed the jury on its own motion that if they found that the deed was delivered to plaintiffs before the decree was satisfied, if it had been satisfied, they should find for plaintiffs. This was enough. They could not have both the satisfaction money and the property.
Objection is also made to the action of the court in- refusing to give the fourth and fifth instructions asked by plaintiffs; but as they are sufficiently stated in the fourth instruction given by the court on its own motion, they need not be further noticed.
The judgment of the district court is affirmed.
Judgment affirmed.