130 Neb. 736 | Neb. | 1936
Defendants appeal from an order denying the further continuance of a moratorium in a strict foreclosure of a contract.
On September 21, 1932, E. H. Luikart, as receiver of Columbus State Bank and of Silver Creek Bank, was granted a decree of strict foreclosure of a land contract on
The question at issue is whether the land is of sufficient value to pay the encumbrances for which defendants are liable if they were to redeem. Those encumbrances amounted, on August 1, 1935, to approximately $30,000. The farm consists of 276 acres. Some of the witnesses referred to it as the east 156 acres and the west 120 acres and in their appraisals they referred to it as two separate tracts.
All witnesses valued the farm by the acre. We compute the total value given by each witness. Plaintiff had two witnesses as to value. The first valued the farm at $22,080, the second at $25,500. Defendants had four witnesses as to value. The first, defendant John O. Graf, valued the farm at $36,960 to $40,740, the second valued it at $30,480,
Aside from the value placed on the land by defendant Graf, the other witnesses for defendants do not show the land to be of sufficient value now to cover the $30,000 encumbrances as of August 1, 1935, with the interest thereon. Plaintiff’s witnesses place the value far too low to amount to the liens. Taking the average of all six witnesses, including the highest values estimated by any, they do not average much over $30,000.
The trial judge saw and observed the witnesses. He probably knows something of farm values himself. In the circumstances, we do not feel justified in disturbing his conclusion as to the real value of this farm. By the time the decree can become effective the encumbrances will equal or exceed the value of the land.
The following rule was adopted in Clark v. Hass, 129 Neb. 112, 260 N. W. 792: “Where, upon a hearing on an application for a moratory stay of proceedings under section 20-21,159, Comp. St. Supp. 1933, it appears that the amount of'the mortgage lien exceeds the value of the lands secured by the mortgage, it is not an abuse of discretion on the part of the trial court to deny the application.”
In Erickson v. Hansen, 129 Neb. 806, 263 N. W. 132, the syllabus says:
“Mere inadequacy of price will not preclude confirmation of foreclosure sale, unless shocking conscience of court, or amounting to evidence of fraud. * * *
“Defendant in a foreclosure action is not entitled to the benefit of the moratory statute where the mortgage lien equals or exceeds the actual value of the mortgaged premises, and where the premises are sold under decree for the full amount of the mortgage lien, interest and costs.”
See, also, First Trust Co. v. Hickey, ante, p. 351, 264 N. W. 888.
Some other minor errors are assigned, but we do not deem them at all prejudicial.
The judgment of the district court is
Affirmed.