28 Neb. 605 | Neb. | 1890
This is an appeal from a decree rendered by the district court of Lancaster county dismissing appellant’s bill. The suit was brought to quiet the title in the plaintiff to lot three (3), in block ten (10), Lavender’s addition to Lincoln.
The appellee contends that the decree should be affirmed, because the evidence taken in the case in the court below has not been preserved and brought before us. If the ap- , pellant was here contending that the findings of the trial court are not supported by the evidence, the position of appellee would be well taken, for the presumption is that the findings are based upon sufficient evidence. Appellant does not claim that the findings are contrary to the evidence, but that the decree is contrary to the findings. In other words, that under the findings, the decree of the lower court should have been for the appellant.
There is but one question for the determination in this case, and that is this: Did the reversal of the decree quiet
Section 677 of the Code provides that: “No appeal in any case in equity, now pending and undetermined or which shall hereafter be brought, shall operate as supersedeas unless the appellant or appellants shall within twenty days after the rendition of such judgment or decree, or the malting of such final order, execute to the adverse party a bond with one or more sureties, as follows,” etc. The provision of section 588 of the Code in respect to supersedeas bond, where a reversal is sought by a proceeding in error, is quite similar to the one above quoted.
It is evident that where no supersedeas bond is filed, the decree remains in full force, and that when a third party purchases property at a judicial sale, or in reliance upon the decree then in force, his rights cannot be divested by a subsequent reversal of the decree.
The case of Lessee of Taylor v. Boyd, 3 Ohio, 353, is so much like the one at bar that we quote the following from the opinion in that case: “But the most difficult and important point in the case is as to the effect the reversal is to have upon the rights of third persons legitimately and innocently acquired. After the time limited in the decree itself had transpired, and the decree became an absolute title, the party thus invested with title, and in possession of the land, sold and conveyed it to a third person, who stands before the court as an innocent purchaser for a valuable consideration without notice. Can his rights be divested by a reversal of the decree upon which his title was originally found? We are of the opinion that they cannot be so divested. When James Boyd conveyed to Abraham Boyd, he had a complete title, which it was competent for him to transmit by conveyance in the usual mode. In making this conveyance, he divested himself of title, and
The title to the property was quieted in Casper B. Parker by the decree of the court, he having sold the property for a valuable consideration, to a good faith purchaser, no appeal bond being filed; there can be no doubt upon principle as well as the adjudicated cases, that such purchase is not affected by the subsequent reversal of the decree. (Voorhees v. Bank, 10 Peters, 475; Shultz v. Sanders, 38 N. J. Eq., 154; Jesup v. Bank, 15 Wis., * 604; Feaster v. Fleming, 56 Ill., 457; Phillips v. Benson, 5 Southern Rep. [Ala.], 78.)
We think the principle here involved has already been determined by this court, adversely to the appellee Courtnay, in the case of McAusland v. Pundt, 1 Neb., 211. The following is the fourth paragraph of the syllabus in that case: “ If a party who has recovered a judgment or decree becomes the purchaser of property thereunder, and conveys the same to a third party; and afterwards the judgment and decree, not having been superseded by bond, is reversed in the appellate court, such grantee will retain the property notwithstanding the reversal.”
The lower court having held that the plaintiff herein was affected by the pendency of the appeal in the supreme court and the subsequent reversal of the case, it follows that the decree of the district court must be reversed, and a decree will be entered in this court quieting the title to said premises in the appellant.
Judgment accordingly.