40 Neb. 394 | Neb. | 1894
An action was commenced by the Nebraska Loan & Trust Company in the district court of Butler county to foreclose a mortgage on certain real estate situated in said county. Decree was rendered foreclosing the mortgage, order of sale issued, sale made and confirmed, and a motion ■made by the purchaser to vacate and set aside the sale and confirmation. There also appears to have been a motion by the principal defendant (the mortgagor) ior an order on the purchaser to compel him to pay the amount of his bid into court. The motion to vacate the sale was overruled by the lower court, and Norton, the purchaser at the sale, ordered to pay the amount of his bid, as reported by the sheriff in his return to the order of sale, into court. From this order Norton prosecuted a petition in error to this court, and on the first hearing here the ruling and decision of the lower court was sustained and affirmed, Norval, J., writing the opinion; Maxwell, the then chief justice, dissenting. Post, J., having made the order in the lower court, over which he was then presiding judge, did not participate in the hearing or decision in this court. The opinion of Norval, J., affirming the action of the lower court, will be found in Norton v. Nebraska Loan & Trust Co., 35 Neb., 466, and the dissenting opinion of Maxwell, C. J., commencing on page 474 of the same volume of reports. Each of these opinions contained a full and
The main contention in the case is over the question of the application of the rule of eaveat emptor to judicial sales. The counsel for Mr. Norton, in the briefs filed at the rehearing, contended that there is á well settled and marked distinction between sales made under a decree of foreclosure (as was the one in the case at bar) and sales made by virtue of an execution issued to enforce a judgment at law. That in the former the court is making the sales and the officer acting under its special direction and supervision, and in the latter not, or not so directly. These sales, under our Code, are made under the same rules as prescribed by statute in regard to notice, appraisement, offer, return or report of sale, and confirmation of the same, the only distinction or difference that we remember, or can discover, being that the one is made under and by virtue of an order issued to enforce a decree in an action, wherein a specifically described tract of land or piece of property is sought to be subjected to the payment of a debt which it has been mortgaged to secure; and in the other, the execution is issued to enforce the collection of a judgment, to be levied on any property of the debtor, and is directed against no certain or described tract or piece of property, and for this reason it is claimed the purchaser is put to a more direct and special inquiry, as the record in the case in which the execution is issued will not furnish any information regarding the property to be sold, and the"papers and records in the mortgage foreclosure case will. In a large number of cases; in which decisions have been made in reference to releasing purchasers ft om their bids or forcing them to complete purchases, the distinction is clearly and definitely raised and established that sales of particularly.described
The motion to vacate the order of confirmation and set aside the sale, filed in the lower court, contained but two reasons for so doing, one being that the property was not advertised as the law requires, and the other that the purchaser was deceived by the sheriff and clerk of the district court as to liens and incumbrances and as to the title he would acquire by purchase at the sale, and did not raise the question of whether any bid was made by Norton, and if so, whether the bid was a conditional one, and this latter question is not presented in either the motion fora new trial or the petition in error, and, in accordance with the well established rule of this court, it cannot be considered here. (Chicago, St. P., M. & O. R. Co. v. Lundstrom, 16 Neb., 263; Cruts v. Wray, 19 Neb., 581; Harrington v. Latta, 23 Neb., 98; Hurford v. Baker, 17 Neb., 446. See, also, Smith v. Spaulding, opinion filed May 2, 1894, in which it was held: “Parties will as a rule be restricted in this court to the theory upon which the cause was prosecuted or defended in the court of original jurisdiction.”)
The only point to be considered in the case then is whether the doctrine of “caveat emptor” is to bejapplied. The query arises here, was Norton deceived by the sheriff and clerk of the district court, or did he have any right to rely on, or was he warranted in relying upon, the statements made by them, with reference to the title of the property, or was he negligent in not searching the records of the ease and of the county and ascertaining the condition of the title of the land for himself? Clearly it cannot be contended that the clerk can verbally warrant the title or vouch for it, and the sheriff is not and cannot be made the agent of the court for any such purpose; Jie makes the sale as or
We have examined the authorities cited by the counsel for plaintiff in error in the briefs filed on rehearing, and while they are in point and entirely applicable and sustain counsel in the position taken, we are satisfied that the rule is that a purchaser at a judicial sale buys at his peril in respect to the title, and it is his duty to search and ascertain the condition of the title for himself. Under the facts and circumstances surrounding the sale in this case as disclosed by the record, and the rule of law pertinent thereto, there
Reaffirmed.