39 Neb. 214 | Neb. | 1894
This is an appeal by the defendant Foxworthy from an order confirming a sale of h¿s real estate made under a de
1. That the appraisement was too low. In Vought v. Foxworthy, 38 Neb., 790, it was held that on motion to vacate a sale the value fixed by the appraisers can only be assailed for fraud; that objections upon the ground that the appraised value is too high or too low should be filed with a motion to vacate the appraisement before the sale occurs, and that to justify the setting aside of a sale on the ground that the property was appraised too low the actual value must so greatly exceed the appraised value as to raise a presumption of fraud in the making of the appraisement. We are entirely satisfied with the conclusion reached in that case. There is no allegation here that the appraisers were guilty of fraud, and there is a great deal of evidence to confirm the valuation placed by them upon the property.
2. That there were no certificates of liens and incumbrances obtained, procured, or filed, and that such certificates had not been waived. In Craig v. Stevenson, 15 Neb., 362, it was held that the provisions for such certificates and the deduction in making the appraisement from the real value of the property of the amount of prior incumbrances were for the sole benefit of the plaintiff and might be waived by him. The rule laid down in that case is undoubtedly correct. The plaintiff did not object to the failure to procure certificates, but asked for confirmation notwithstanding that fact. This constituted a waiver upon his part. The defendant cannot complain. The “set up” price, if there were incumbrances, being increased by the failure to certify them, the defendant thereby received a benefit rather than suffered a disadvantage.
3. That there was no such notice of sale as is required by law. In support of this objection the defendant contends that the notice was not published in such a newspaper as the law requires. It appears that it was published
4. Fraud in the proceedings. The allegations in support of this objection are as follows :
(a.) That the proceedings were hurried through while the defendant was perfecting a loan with which to pay off the debt. Decrees always provide a reasonable period within which to redeem after decree, and in addition to that period the defendant in this state is entitled to an extended stay of execution without a bond. If he fails to redeem within the time thus given him he cannot complain because the plaintiff proceeds with all the dispatch the law permits.
(6.) No notice was served on the defendant of the issuance of the order of sale until within two days of the sale, and the defendant did not know of its issuance. The statute does not require that the defendant should be notified of the issuance of an order of sale. It is a matter of record of which he must take notice.
(c.) The third, fourth, and fifth allegations of fraud relate to the publication of the notice and the failure to procure certificates. These subjects have already been treated.
There is no fraud alleged and the proof does not even support such allegations as were made.
The judgment of the district court was right and is
Affirmed.