16 Neb. 407 | Neb. | 1884
This is an action of ejectment brought by the plaintiff against the defendant in the district court of Antelope county, to recover the possession of certain real estate in said county. On the trial of the cause the court found for the defendant, and dismissed the action.
It appears from the record that in April, 1875, John D. Neligh and wife executed a mortgage upon the real estate in controversy to E. H« Rogers, to secure the payment of a promissory note for the sum of $2,040, with interest,, which note was due and payable in six months from that date; that default was made- in the payment thereof, and in March, 1876, a bill in chancery to foreclose said mortgage was filed in the circuit court of the United States for the district of Nebraska; that Neligh and wife made no defense to the action, and in May, 1876, a decree for the sum of $2,318.81, was taken against them by default, and declared a first lien on said real estate; that Neligh thereupon requested and obtained stay of order of sale for the period provided by statute; that after the expiration of the stay, the premises were sold under said decree, the sale thereafter confirmed by the court, and a deed ordered and made to the purchaser. The land was afterwards conveyed by the purchaser, under the decree, to the defendant. It is admitted that there was no appraisement of said property before the sale, and that the notice of sale was published in a newspaper in Omaha, and that there was no notice published in the county where the land is situated. The plaintiff claims that the sale is void, and the purchaser acquired no title thereby, and that the plaintiff is still the owner of the property.
Sec. 1 of the act of 1875 [Laws, p. 60], for the more “equitable appraisement of real property under judicial sale,” provides that: “ Whenever, hereafter, execution shall be levied on any lands and tenements, the officer levy
Sec. 2 provides in what manner the appraisement is to be made.
It will be observed that the title provides for appraisement of real property under judicial sale, while the act itself provides for sales where an “ execution shall be levied on lands and tenements.”
A judicial sale is in contemplation of law a sale made pendente lite; a sale in court, and the court is the vendor. Rorer on Judicial Sales, § 1.
The courts of this state have construed the law to apply to all sales of real estate under process of the court, whether upon execution or order of sale, and this construction is within the spirit of the act and will be sustained. But the circuit court of the United States, finding no decision of this court construing the statute, might well be in doubt whether it applied to sales under a decree of foreclosure, and therefore not require an appraisement. A sale without an appraisement is not void; at most it is erroneous. The court acquired jurisdiction by the service of process, and this jurisdiction continued until the sale was made and confirmed, and a deed executed. Errors may have been committed, but it was the duty of the party complaining of the same to endeavor to correct them in some of the modes provided by law. If he has failed to do so ho cannot treat the judgment as void. The presumption is, that the court examined the proceedings of the of
Judgment affirmed.
