110 Neb. 216 | Neb. | 1923
This action involves the validity of a sale of real estate for payment of debts and costs of administration by a foreign administrator.
In 1903 Henry Schroeder, a citizen and resident of Wyoming, died intestate, leaving him surviving a widow and four children, whose ages ranged from two to eight years. At the time of his death he was possessed of real and personal property in Wyoming and also 160 acres of land in Douglas county, Nebraska, which is the subject of this controversy. Such proceedings were haO in Wyoming that all of decedent’s property in that state was applied toward the payment of the debts against his estate, and there still remained unpaid debts to the amount of $4,834.52 and some costs of administration. The land in controversy was subject to a mortgage of about $1,500, and the debt which it secured had been filed and allowed as a claim against decedent’s estate in Wyoming. In 1905, on the petition of the administrator, license was granted 'by the district court for Douglas county to sell the land in controversy for the payment of the unpaid debts and costs. The land was advertised for sale and not sold for want of bidders; on readvertising bids were received, but, not being for a satisfactory sum, the sale was adjourned and abandoned. This attempted sale was not reported to the district court. The land was again advertised for sale and was purchased by the plaintiff for the sum of $12,080. The sale was reported and confirmed' and deed issued to the plaintiff. Plaintiff brought this action to quiet title on the ground ■ of adverse possession. The defendants are the heirs of Henry Schroeder, deceased. They filed an answer and cross-petition in which they assault the administrator’s sale
The widow of Schroeder consented to the sale of the real estate by the administrator, waiving her dower right in the land, but reserving to herself her right to dower in the proceeds of the sale. Subsequent to the •sale she executed a quitclaim deed to the premises. The administrator, previous to granting of license, filed certified copies of his appointment and of his bond, as administrator, but did not file authenticated copies, as required by the statute. Although the administrator was licensed to sell more real estate than was necessary for the payment of debts, the district court for Douglas county did not require, nor did the administrator give, a bond to the district court-, as required by section 1126, Comp. St. 1922. The notice of sale given by the administi'ator was for one day less than the period required by statute; nor did the district court require the purchaser to give a bond for the payment of the debt allowed against the decedent’s estate, and which was secured by a mortgage on the land, as required by the statute; nor ■did the purchaser pay or satisfy the mortgage, and the debt which it secured was afterwards paid by the administrator out of the proceeds of the sale of the land.
Defendants urge that the sale should be set aside for the iiTegularities mentioned, and also for the reason that, as they allege, the bids were chilled because of the irregularities in the proceedings, and that the land did not bring an adequate and fair price, and that the administrator did not pay in the full purchase price of the land, in that he did not pay or discharge the mortgage upon the land in addition to the price bid.
This is the only error we have been able to discern which Avas committed by the district court. In all other respects the decree of the district court is affirmed. The judgment is reversed and the cause remanded, with directions to the district court to ascertain the value of the Avidow’s life use in one-third of the fund required to discharge the mortgage upon the land, and to enter a decree requiring plaintiff, as a condition to quieting his title, to pay to the defendants the Avhole sum required to pay the mortgage debt, less the value of the AvidoAv’s life use-of one-third thereof, and such sum to bear interest from the date
The judgment of the district court is affirmed in part and reversed in part and the cause remanded for further proceedings in accordance with this opinion.
Judgment accordingly.