*1 rеlevant, petition its absence will not doom the failure. parent are
Nor we convinced that a an lay person competent formed and concerned is not testify opinion,on as to his or her “best educative parents testifying interest.” wеre not as ex perts, clearly and the evidence was admissible un (Reissue 1979) § der Neb. Rev. Stat. 27-701 as that “rationally perception based on the of the witness helpful understanding and . . . to a clear of his testi mony or the determination of a fact in issue.”
The decision of the trial court is correct and is af- firmed.
Affirmed. appellee Kleeb, Stewart W. and cross-appellant, D. Askey, Allene Wilma A. Arden Askey, L. and Frank Jezbera, Jezbera, Velma appellees, appellant cross-appellee. Lauritzen, Kenneth
Jim R. Titus of Johanns, Bowman & appellant. D.
Ronald Svoboda and David V. Chebatoris of Clements, Chebatoris, Svoboda & Stewart Kleeb. C.J., Krivosha, Boslaugh, McCown, JJ., D.J. Moran,
Hastings, Caporale, C.J. Krivosha, appearance of this before is the second This Originally, before us this case was con- court. cerning partition of whether a action *2 properly of the case are facts conducted. reported be in our found at earlier appeal This 583 con- N.W.2d question as to who should be en- itself with the cerns crops of eаrned to the landlord’s share titled appeal. years 1980and 1981while case was Having record, that now we believe reviewed crops to not have awarded the trial court should original judg- and we therefore reverse the owners ment. ju- trial court сonfirmed
On property question and ordered the dicial con- purchaser, veyed (pur- to the P. Lauritzen Kenneth chaser). Askey Owners Wilma E. and Arden L. (Askeys) Askey appeal filed a notice of and what purports bond. Additional own- ers, Jezbera, Kleeb, D. Stewart W. Aliene Velma join ap- Jezbera,
and Prank not did including Askeys, all, peal, but will be referred “original herein as owners.” During pendency appeal the referee farming properly leased the real estate on a arrangement, sharecrop resulting in net rental years for income Following our affirmance in the first 1981. case on February 26, 1982, the trial court entered an provided original that the owners which to were years the real estate taxes for the were therefore 1981 and recеive the landlord’s years crops of for the 1980 and 1981. The share court also ordered that interest earned on held referee the time appeal purchaser. should be to the Be- unpaid of interest on the cause presented court, to the trial it made no find- regard. ing assigns Lauritzen error awarding trial court’s of the landlord’s share original Although to the initially unpaid owners did not seek interest on the balance, Stewart Kleeb now asserts for the by way cross-appeal, first they time in this should be entitled to interest on the bal- purchase price. ance of the
In order to determine whether the action of the ques- correct, trial tions. The first we must resolve two question is, What was the status of just the case before the was taken? The sec- question is, filing оnd What was the effect of the Askeys? question, With to the first the answer relatively simple. Absent of a notice of appeal, in this case would have been 1980 and 1981 and obligated expenses, have been cluding the real estate taxes. The sale bill cоn advertising *3 tracted referee that result. In sale, the the provided as follows: “POSSES Buyer possession : rights SION takes full of mineral buyer crops and takes owner’s interest in 1980 at the paid. pay ($1,214.03) time balance is Seller to 1979 prior pays and all real estate tаxes. Purchaser 1980 Regardless taxes.” of what the law be as to appropriate buyer division between and seller at judicial nothing sale said, where they contracted, this as do, were entitled to crops expenses to how In were to be handlеd. judicial vendor, sales the court is the State Bank (1879), Green, 297, Nebraska v. 8 1 Neb. N.W. 210 of and generally may set such terms not otherwise un lawful. Without to when the sale was to take place or the confirmation obtained the deed con veyed, was to the taxеs for the year presumably and, subsequent then, 1980 for all years, and was likewise to receive the year subsequent presumably, years. and, all 1980 and, Absent of a notice of more [540] super- purported giving
importantly, of a absent bond, as to how there would be sedeas this case should resolved. giving super- of the then was effect of
What Askeys? giving of the Did the bond sedeas judgment set aside the entered effect bond merely suspend 6, 1980, or did it trial court on June of the until we affirmed the enforcement February 26, action on 1982? court’s hearing, 6, 1980, after nоtice and On June pur specifically confirmed sale to convey prem ordered the referee to said chaser purchaser by On deed. ises purchaser equitable prop owner of the
became erty, Sherman, 681, 19 Neb. 28 319 Lamb v. N.W. (1886); (1894), 432, v. 1020 N.W. Yeazel pursuant
and, the court’s order and the representation previous made referee in the notice, became obligated to taxes. the 1980 think it We reading providing both a from statute clear supersedeas giving bond, of a Rev. Stat. Neb. (Reissue 1979), previous holdings and our §25-1916 giving bond does not set previous merely order of the court but aside a suspends its enforcement. Guaranty Teichmeier, Fund Commission 387, 391, 229 we noted:
Neb. general rule is that the effect “The suspend proceedings preserve is to pending apрeal. quo the determination status suspends proceedings all further on It appealed from, not, but does like a decree re or versal judgment by annul judg Appeal *4 And 4A C.J.S. ment itself.” and Error rule, at 497 author notes: a a § 662 “As stay reverse, annul, or does not or undo already impair done, force, been or has what judgment, pass merits, order, or deci jurisdictions court; of the trial and in most sion judgment, order, or decree not vacated or an- validity impaired nulled, nor is its or effect there- by.” jurisdiction. such We are а To hold otherwise totally ignore super- be to the function of a position urged bond. Were we take the sedeas upon appellee us Stewart one could appeal case, and, such file a harvested, had been raised aftеr miss dis- liability contrary without to the of the language clear sale bill.
supersedeas bond in this case did not reverse the or- of the trial court entered on der nor did affect the it commitment made fact, bill. As matter of our filed in February 26, 1982, case on did confirm the urged appellee
sale, Kleeb, but, Stewart rather, affirmed ‘‘the order of the District Court confirming dering the sale to Lauritzen and or- convey premises
the referee to to him . . .” All that our . decision did towas affirm what already court done and remove the stay preventing acting which was the referee from previous in accordance order of the trial The trial court. therefore should have di- rected landlord’s share of the earned years purchaser 1980 and 1981 obligated and the likewise bе expenses, including landlord’s share of the payment of real estate taxes incurred reasons, and 1981. For the same it follows that interest earned on the must be to the referee for distribution us
That leaves with the final of whether herein should be inter- balance of the est present. Unfortunately, of confirmation to the date original owners did not raise that issue before trial court and did not afford the trial court the pass
opportunity importantly, it. More how- *5 5i2 ques parties this
ever, on offered no evidence general to this matter is The rule tion. by exprеssed fairly clear, decision as our Powell, 105 Neb. of “Equity we said: will wherein enjoy permit that are de to the rentals a vendee not not and which he has at from land for rived payment permit escape him to time same price unpaid purchasе on un the vendor to terest purchase price made of such has been tender less concerning only kept good.” The evidence and stipulation into all the is a entered tender all that at times relevant the effect to was “ready willing to аnd able the full Obviously, purchase price.” his in amount ability Askeys due that the to to bond fact preventing referee filed a executing conveying Lauritzen, deed to from thereby requiring payment. to make Lauritzen The gave very to of the sale Lauritzen a choice of terms upon paying or confirmation when merchantable and deed were delivered. The abstract payable not due and until deed was de happen did not until after the and that man livered was issued this court. date argues being that, Apрellee Stewart Kleeb this an action, equitable we have reasonable discretion to just withhold interest as is reasonable or allow Spelts the circumstances. See Patterson v. under Co., 692, 90 N.W.2d 283 Lumber argument difficulty Askeys that had the prevented supersеded pay not payment balance, have been ment forthcoming delivery It the deed. was Askeys’ which authorized Lauritzen to act withhold totally any Likewise, are without payment. we evi determine to whether obli dence gated any anyone paymеnts make to else keep proceeds time reserve gained any payment when he needed whether delay. benefit reason of the One surmise impossible, facts, difficult, if do but it is solely equity on surmise. absent evidence and based We find that therefore directing that the landlord’s share
for the owners, 1980 and 1981
subject estate their real taxes years, pro- reversed, for those should be and the *6 paid pur- ceeds instead to should be ordered subject chaser, to his the real estate taxes question. in We likewise reversе that portion directing of the trial court’s order that paid pur- interest on the be paid chaser and direct that the interest be to instead the referee for distribution to the regarding request We make unpaid be ordered to interest on the balance.
The of the trial court is reversed and cause remanded with to directions enter opinion. in accordance Reversed and remanded with directions. J., concurs the result. dissenting. J., Boslaugh, perhaps
The order of while errone- equitable. majority ous, at was least equity to fails do between the it because unpaid purchase price awards both the use of the purchaser. and the income from the to land From the time when a contract of sale of land performed equity, is, prop be should land erty of the held vendee the vendor in trust for purchase price him, Upon for him
vendor held trust the vendee. performance specific the vendor is liable account for profits and the vendee the rents on the for the interest price. purchase Russell v. Western Nebraska Home, 728, Inc., N.W.2d 728 Rest McCleneghan 306, Powell, 105 Neb. opinion, majority cited vendor unpaid pur- balance of interest on recovered support price. result does not That case chase Under the rule of the court in this case. reached the McCleneghan case, in this case to the owners for in- be to account should price. unpaid purchase balance terest held that the vendor case we In the unpaid balance of the to intеrest on the price purchase the evidence the vendee because the vendee either borrowed to show failed money it for the benefit or held unused Because the evidence did show that vendor. McCleneghan exclusively “had eithеr borrowed money appropriated $20,000 and that held continuously 1918, from March unused and in defendants Powell readiness fulfilment contract,” of their the defend were entitled interest at the Powell lawful ants money from March until date the rate 312, 180 into court. Id. at N.W. аt 579. perform enough A tender or offer to is not mere accounting the vendee from for interest on excuse *7 performance. delay evidence must show that money “appropriated” the contract and has to the accrued” vendеe from the “no benefit un- money accounting before the can vendee avoid purchase price. vendor for interest this case the evidence falls far short of satis- fying the rule case. The merely stipulated ready the vendee “was willing pur- and able to the full amount of the showing price.” There is chase vendee money had borrowed it, interest on “appropriated” money derived no from it. benefit is to be income
If the awarded to purchaser, he should account for purchase price. interest join JJ., in this dissent. Hastings, McCown