40 Neb. 281 | Neb. | 1894
This was an action by the Nebraska Loan & Trust Company against the Nebraska Land, Stock Growing & Investment Company to foreclose a mortgage. The appeal is from the order confirming a sale made under a decree rendered in the action. The transcript filed here begins with the decree, from which it appears that Francis G. Hamer and Rebecca A. Hamer, his wife, were originally parties defendant, but it appearing that they had conveyed the land to the investment company the case was dismissed as to them. The premises mortgaged are described as “the west one-half of section three (3), town five (5) north, range eighteen (18) west of the sixth principal meridian.” The decree finds due the trust company $1,568.70, with interest at ten per cent from the date of the decree, December 30, 1891, and that that amount is a first lien upon the land. It finds that the trust company has a mortgage to secure notes not due at the time of the decree amount
An order of sale was issued March 31, 1893, upon which a sale was made, which was on June 24 set aside, and on June 29 another order of sale was issued, upon which a new appraisement was had and a sale made August 9. The order of sale was returned August 10, the sale confirmed August 24, the court overruling objections filed by the investment company to the confirmation of the sale and its
There are several objections based upon the fact that the sale was not made under the appraisement had under the first order of sale. This objection is based upon sections 495 and 509 of the Code of Civil Procedure, which provide for a new appraisement where lands shall have been twice advertised and offered for sale and remain unsold for want of bidders. This provision was for the benefit of the party to satisfy whose lien the sale is made, in order to -obtain a lower appraisement. Here the land did not remain unsold for want of bidders, but was sold and the sale
It is complained that the published notice of said sale was deficient. One objection to this notice is that it states the amounts incorrectly. A comparison of the notice with the decree and order of sale shows that this objection is unfounded. The other objection is that it described the liens to satisfy which the sale was to be made as judgments against Francis G. Hamer, Rebecca A. Hamer, and the investment company, whereas the Hamers had been dismissed out of the case, and the judgment was against the investment company alone. The notice certainly was inaccurate in this respect, but we cannot see how the investment company could possibly have been prejudiced thereby. The same remark will apply to the further statement in the notice of sale that there had been a levy upon the land ordered sold.
Another objection urged is that Mr. Scranton, one of the appraisers, was not in fact a freeholder as the statute requires. The evidence upon this point shows that land in Phelps county appears of record as belonging to Scranton; that the deed was made to Scranton to secure a loan made by him to the grantor, but that subsequently, and before the appraisement, Scranton had advanced further moneys to the grantor, with the agreement that the conveyance
Another objection is based upon the affidavit of Scranton, that he appraised the land at what he supposed it would bring at forced sale, and that he believed the land in ordinary times would be worth $100 per acre. Appraisements should be made according to the judgment of the appraisers of the fair market value of the property at the time of the appraisement, and where it appears that they proceeded upon a different basis, to the prejudice of the party objecting, it is probable that the appraisement should be vacated upon proper proceedings for that purpose. Another objection was made that the appraisement was too low, and there was a number of affidavits fixing a valuation of the property per acre considerably greater than the valuation placed upon it by the appraisers; but, upon the other hand, a number of witnesses place the value at $40 and $50 per acre, while the appraisement is nearly $60 per acre. The trial judge must have considered this evidence in connection with the objection in relation to the method pursued by Scranton, and he must have found on this conflicting evidence in favor of the lower valuation. If the value of the land was even approximately as low as
It is said that the confirmation was irregular because entered at an adjourned term of court and within sixty days
Complaint is made that the court overruled an application to continue the hearing of the motion to confirm until the following term or a future date, for the reason that counsel had not had sufficient opportunity to examine the return and to procure affidavits. Applications for continuances and postponements of hearings are addressed to the discretion of the court, and will not be reviewed except for abuse of discretion. The investment company filed sixty-five objections to the confirmation. It filed twenty-six affidavits in support of these objections and three affidavits in rebuttal of those of the mortgagees. Many of these affidavits are detailed and elaborate. It would seem, therefore, that a fair opportunity had been allowed it to present proof. There appear as exhibits attached to one of the affidavits a vast number of newspaper clippings of the date of August last containing information relating to the finances of the Union, the attitude assumed by members of congress upon questions relating to the currency, the failures of banks, the closing up of manufactories, and the decline in value of stocks. It also includes the whole of a speech made by a Nebraska representative upon a bill relating to the currency. If further time had been afforded, the trial judge might have entertained a well-grounded fear that he would have thrust upon his attention the remainder of the Congressional Record and a further vast volume of distressing current literature.
Upon each of four other tracts there was a more or less prolonged series of bids made alternately by Mrs. Hamer and the plaintiff. In each case the land was declared sold to the plaintiff, in spite of a bid by Mrs. Hamer, in three cases $5 higher than plaintiff’s bid and in one case $45 higher; but Mrs. Hamer’s bid was in three instances declared by her agent to be “subject to all liens except $1,568.70,” and in the fourth instance “subject to all prior liens except $1,568.70.” The proof on the part of the plaintiff tends to show that nothing was said as to what this exception referred to, while the proof on the part of the investment company tends to show that the exception was stated to relate
The sale of the southwest quarter of the southwest quarter stands upon a somewhat different footing. The first bid was by Mrs. Hamer for $500. This was followed by one for the plaintiff for $1,505. It then went upon straight bids made alternately by Mrs. Hamer and the trust company until it reached $1,565, when Mrs. Hamer began to make double bids of different amounts, one absolute, the other coupled with conditions, until finally there was a straight bid by the plaintiff for $1,825, and a single bid by Mrs. Hamer for $1,830, conditioned as in the other cases. Thereupon the plaintiff withdrew all its bids down to $1,505, and Mrs. Hamer withdrew all her bids to $1,510, and made that bid subject to the usual conditions. Whereupon the land was sold to the plaintiff for $1,505. This left this tract in the same condition as the others, provided the withdrawal of higher bids was proper. In Payne v. Cave, 3 T. R. [Eng.], 148, it was held that a bidder might
An entirely different state of affairs exists in regard to the two tracts sold together. Mrs. Hamer made .one small bid on this tract, which was followed by one somewhat larger by the plaintiff. This being the only land remaining unsold the plaintiff’s agent voluntarily raised his, bid to $2,831.66. He states that his object was to bid enough to make the whole- proceeds of the sale equal the amount of the decree with interest and costs, and it would appear that this object was made known to the sheriff. The land was declared sold at that price, but thereafter finding that he had made a mistake in his calculations, and before leaving the place of sale, plaintiff’s agent changed his bid to $2,126.66, which is the amount shown in the return as the purchase price of these tracts. The investment company’s witnesses swear that they did not hear the change announced, but whether they did or not is immaterial. A mere mistake on the part of the bidder in his own calculations as to the amount which he intended to bid,- there being no mistake as to the land sold, the terms of that sale, or other facts of that nature, and the mistake not being induced by any conduct on the part of the vendor, is no ground for a rescission. While a bid may be changed or withdrawn before its acceptance by the vendor (in this case by the offi
Judgment accordingly.