99 Neb. 131 | Neb. | 1915
The question involved on this appeal is one of law; no controverted question of fact being presented by the record. The facts, briefly stated, are: On November 3, 1888, Chárles Childs executed and delivered to the Omaha Loan & Trust Company his promissory note for $8,000. As security therefor he and his wife, Catherine J., executed and delivered to the trust company a mortgage deed covering lands in sections 15, 22 and 23, in township 14, range 13, in Sarpy county, which note and mortgage were, ón February 23, 1895, duly assigned to Everard D. Ferguson. Thereafter Ferguson brought suit in the district court for Sarpy county to foreclose such mortgage. December 4, 1900, a decree of foreclosure was entered. February 26, 1901, plaintiff in this suit obtained a judgment in the district court for Douglas county against Charles Childs. January 4, 1903, Charles Childs died, intestate, as we infer from the record, leaving as his heirs at law his children, Harriet M., Susan I., Lowrie and Caroline. An
The question of law to be determined is: Did the fact that Charles Childs died after the entry of the decree in the foreclosure suit, and that no order of revivor was entered prior to the issuance of the order of sale and proceedings had thereunder, render such proceedings null and void? The district court so held. In so holding the court erred.
Plaintiff cites Vogt v. Daily, 70 Neb. 812, Street v. Smith, 75 Neb. 434, Wardrobe v. Leonard, 78 Neb. 531, and Seeley v. Johnson, 61 Kan. 337, to support its contention that, “Where a judgment or decree has been rendered, and thereafter a party to the judgment dies, the judgment or decree is unenforceable by execution or judicial sale without revival as to the representatives of the deceased party to the judgment or decree.” Wardrobe v. Leonard, supra, is an authority against this contention. In that case Vogt v. Daily, Street v. Smith and Seeley v. Johnson, supra, are all three considered, and the rule announced:
After the death of their father, Susan I. and Harriet M. Childs challenged the validity of the order of confirmation in the foreclosure suit, and 'the executor filed a bill in the United States circuit court for the district of Nebraska for a writ of assistance to place him in possession of the homestead which the. two daughters named had occupied with their father before his death, and which they were still holding and claimed the right to continue to hold, on the ground that Charles Childs died before the decree of foreclosure was filed or entered and before the sale thereunder was made, and that the suit had never been revived. The circuit court granted the writ, and the case was taken to the circuit court of appeals for the eighth circuit, where the judgment of the circuit court was affirmed. Childs v. Ferguson, 181 Fed. 795. Opinion by Sanborn, circuit judge. In the fourth paragraph of the syllabus it is held: “It was the settled law of Nebraska, when certain mortgages were made, that an order of sale, a sale, and a confirmation of the sale, made after the death
The judgment of the district court is therefore reversed, and the suit dismissed at plaintiff’s costs.
Reversed and dismissed.