Sessions v. Irwin, 8 Neb. 5

Sessions v. Irwin

8 Neb. 5 | Neb. | 1878

Maxwell, Ch. J.

Pa May, 1877, Milan H. Sessions recovered a judgment against tbe defendants for tbe sum of $350, and costs taxed at $41.38. An execution was issued on tbe judgment in June of that year, which was levied upon tbe north-east quarter of tbe south-east quarter, of section twenty-four, in township ten north, of range six east of tbe sixth principal meridian, in Lancaster *7county. The interest of the defendants in said real estate was appraised at the sum of the ten dollars, and was purchased by Curson for the sum of $30. The sale was reported to the court, and on the second day of October, 1877, an order made to show cause by the ninth day of that month why the sale should not be confirmed. On the tenth day of October, 1877, no objection on the part of the defendants having been made to tbe confirmation of tbe sale, it was confirmed, and a deed for tbe premises executed by tbe sheriff to tbe purchaser. On tbe next day tbe defendants filed a motion to set tbe confirmation and sale aside. The motion appears to have been sustained, but no formal order was entered on tbe ¡records of tbe court until March, 1878, when an order was entered on tbe records vacating tbe order of confirmation and setting tbe sale aside, to which tbe plaintiff excepted, and now brings tbe cause into this court by. petition in error.

In appraising tbe property, tbe appraisers fixed tbe value at $2,200, and found as prior incumbrances as follows:

Taxes as per county treasurer’s certificate...........................$.........

Tax deeds as per county clerk’s certificate....................................

Mechanic’s lien as per county clerk’s certificate.............................

Prior judgments as per district court clerk’s certificate..................

Total incumbrances...................................................$.........

The interest of tbe defendants was valued at ten dollars.

Tbe certificate of tbe county clerk shows a tax deed to N. C. Brock for said premises dated June 12, 1877, also tax deed to Brock dated December 15,1871.

It also appears from a certificate of tbe county treasurer that certain taxes were due upon tbe premises in question.

Tbe act passed in 1875 “ for tbe more equitable appraisement of real property under judicial sale,” pro*8vides: “ That for the purpose of appraisement the officer and the freeholders therein named shall deduct from the real value of the lands and tenements' levied on the' amount of all liens and incumbrances for taxes or otherwise, prior to the lien of the judgment under which the execution is levied, and to be determined as hereinafter provided, and which liens^and incumbrances shall be specifically enumerated, and the sum thereafter remaining shall be the real value of the interest therein of the persons or corporations against whom or which the execution is levied.” Laws, 1875, p. 60.

Section 3 of the act provides that: “ It shall be the duty of the county clerk, the clerk of the district court, and the county treasurer of the county wherein such levy is made, for the purpose of ascertaining the amount of the liens and incumbrances upon the lands and tenements so levied upon, upon application of the sheriff in writing, holding such execution, to certify'to said sheriff under their respective hands and official seals, the amount and character of all liens existing against the lands and tenements levied upon, and which are prior to the lien of such levy, as the said liens appear of record in their respective offices.

An “ incumbrance ” is defined to be “ any right to, or interest in, land which may subsist in third persons, to the diminution in value of the estate of the tenant, but consistent with the passing of. the fee.” 2 Greenleaf Ev., § 242. 1 Bouvier Law Dict., 596. Scott v. Twiss, 4 Neb., 133.

A “lien” is defined to be “ a hold or.claim which one person has upon the property of another as a security for some debt or qharge. 2 Bouvier’s Law Dict., 47.

The object of an appraisement law is to prevent' a sale of the debtor’s real property at a sum altogether disproportionate to its real value'. Contracts are made with reference to this provision of the statute, and the *9creditor is aware at the time an obligation is incurred, that if he is compelled to invoke the aid of the court to enforce his demand against the debtor, that the interest of the debtor in the real estate levied upon must bring at least two-thirds of its appraised value. And the inconvenience and delay to which the creditor may be subjected in consequence of such appraisement are but slight compared with the injuries which might be sustained by the debtor in the sacrifice of his property in the absence of an appraisement law. The appraisers are to appraise the interest of the debtor at “ its real value in money.” How is this to be done ? In maMng the appraisement, the appraisers act judicially. The certificates furnished by the county clerk, clerk of the district court, and the county treasurer are not conclusive evidence of the facts which they purport to establish. A mortgage upon the lands in question may appear unsatisfied upon the record, yet the entire amount due thereon may have been paid. So in regard to other liens and incumbrances. It is the duty of /the appraisers to endeavor to ascertain the actual amount due upon such liens and incumbrances, and-they must specifically enumerate the liens and incumbrances which they find subsisting.

Tax deeds are not liens or incumbrances within the meaning of the statute. A party claiming title under a tax deed holds adversely, and for the time being, at least, must rely upon his title.

The statute provides that in cases where there has been a valid assessment, if the title fails the holder may. have a lien upon the real estate, but this is a mere possibility, and cannot be considered by the appraisers, as the validity of a tax deed must be determined by a court and not by appraisers.

In the case at bar the property was appraised at $2,000. No liens or incumbrances are found by the ap*10praisers to exist against the land. The property therefore should have sold for at least two-thirds of its appraised value. As it failed to sell for that sum the court did its duty by setting the sale and confirmation aside. The judgment of the district court is therefore affirmed.

Judgment affirmed.