77 Neb. 12 | Neb. | 1906
This controversy arises over an order of the district court for Douglas county confirming a sale of real estate made under a decree of foreclosure of that court. It appears that in March, 1900, the appellants went into possession of the real estate in question, the same being a bouse and lot in one of the additions to the city of Omaha, under a contract of purchase with one Gr. S. Benewa; that
The allegations contained therein are in substance as follows: That in September or October, 1902, the appellants entered into an agreement with the assignee of the decree, by the terms of which they were to pay $12.50 a month; that said payments were to be applied, first, upon
Under the present statute, and our rules governing appeals in equity cases, we are in no manner bound by the view of the trial court as to the sufficiency or the Aveigkt of the evidence, where it consists Avholly of affidavits, depositions, and other written testimony. In the instant case, no oral evidence was taken, and we are therefore in as good a situation to judge of the weight and probative force of the testimony as Avas the trial court. Section 681a of the code; Grandin v. First Nat. Bank, 70 Neb. 730; Faulkner v. Simms, 68 Neb. 299. We desire to say, before proceeding further with this opinion, that it would seem that a question of this importance should not be tried on a motion and affidavits only; that, whore such objections are presented, the district court should require pleadings to be filed, direct an issue to be made up, and upon such issue proceed to trial as in other cases. In this case, hoAAever, the parties having elected to proceed on the motion and by affidavit evidence, and having so tried the issue Avithout objection, >ve have concluded to take the case as we find it, and decide anew the question presented.
The evidence contained in the record is so voluminous as to make it impracticable to quote it? and Ave must con
In ordinary cases, on a motion to confirm a sale of real estate under a decree of foreclosure, the court will consider only such matters as relate to the regularity of the sale, and this may be stated to be the general rule applicable to such cases.. To this rule, however, there are exceptions, and it has often been held that, in an equitable proceeding of this nature, the court will refuse to confirm a sale Avliere it was unfairly, conducted; and there Avould seem to be no good reason why such power should not be exercised when it appears that through a misunderstanding between the parties one of them was prejudiced without fault on his part.
In 2 Jones, Mortgages (6th ed.), sec. 1639, we find the folloAving: “The most general principle on AAdiich the courts act in setting aside the sale and ordering a new one is that equity will not allow any unfairness or fraud, either on the part of the purchaser, or of any other person connected with the sale.”
In Aderholt v. Henry, 82 Ala. 541, the court said: “But, AAhen there is some impropriety or irregularity attending the sale, affecting its fairness, or surprise or misapprehension caused by the conduct of the purchaser, or misconduct on his part, or on the part of any person connected therewith; or when the sale is conducted in violation of the decree, or in disregard of the rights and interest of some of the parties; or, Avhen from any cause, it Avould be inequitable to permit it to stand, it becomes the duty of the court, on settled principles, to vacate the sale, though a conveyance may have been made, upon proper application, before confirmation, in the suit in which the sale was made.”
In Paulett v. Peabody, 3 Neb. 196, it was held: “Judicial sales should be conducted with the utmost fair
From the foregoing authorities it seems clear that we have not only the power, but it is also our duty, to set aside the sale in question. The judgment of the. trial court is therefore reversed, the sale is set aside and held for naught, and the cause is remanded to the district court, with directions to take an accounting of the amount due upon the decree in question, that the appellants be allowed sixty days within which to redeem the premises in question from the lien of such decree, and, in default of such' payment within said time, the assignee be given leave to proceed to enforce her decree according to law.
Judgment accordingly.