90 Neb. 177 | Neb. | 1911
Lead Opinion
Action in the district court for Cuming county to vacate and set aside an order confirming a sale of real estate made under a mortgage foreclosure decree, and to cancel the sheriff’s deed made to the purchaser. The plaintiffs had the judgment, the defendants have ‘ appealed, and the case is now before this court for a trial de novo upon the record and bill of exceptions.
It sufficiently appears that on or about the 21st day of May, 1904, one John Tierney, Sr., conveyed by warranty deed to his daughter, Anna Cunningham, the south half of the southeast quarter of section 25, and the northeast quarter of the northeast quarter of section 36, township 24, range 6 east, in Cuming county, Nebraska, which he then owned in fee simple, subject to a mortgage to the Security Mutual Life Insurance Company for $3,000, reserving to himself an annuity therein of $300 a year during the remainder of his life; that Anna Cunningham and her husband, Martin, went inte possession of the land and -performed their part of the agreement; that they mortgaged the premises to John Tierney, Sr., for the sum of $300; that the plaintiffs in this action, who are children of John Tierney, Sr., were dissatisfied with their father’s disposition of his property, and in June, 1906, commenced an action in the county court of Cuming county to have their father declared incompetent, and for the appointment of a guard
It was alleged by the plaintiffs, as a basis of their right of action in this case, that, when the agreement above described was concluded, it was further agreed between H. O. Brome (as attorney for the plaintiffs) and the defendant Andrew R. Oleson that Oleson would not ask for a confirmation of sale until after the February term of court; that the defendant Qleson, in violation of his agreement, and in fraud of the rights of plaintiffs, and without notice to them, obtained a decree of confirmation and a sheriff’s deed to the premises in question, which the plaintiffs in this action ask to have set aside, declared void and canceled. On the other hand, defendant Oleson, by his answer, denied that he ever made any agreement in relation to the matter with the plaintiffs by and through their attorney, H. O. Brome, and alleged that at the time when the agreement first above mentioned was concluded he informed the parties thereto that he would not postpone his application for a confirmation of sale indefinitely, but, in order to accommodate his former clients, the Cunninghams,' he would not ask for a confirmation of sale at the February sitting of the court, which was to begin immediately thereafter, and on the 1st day of February, 1909; that he positively declared that he would make no arrangement whatever with attorney Brome or the plaintiffs herein; that, according to his promise made to the Cunninghams, he refrained from asking for a confirmation of sale at the February sitting of the district court, and made no application therefor until more than 60 days had elapsed, in order to give his former clients an opportunity to sell the premises and carry out the terms of their agreement with the plaintiffs.
It appears that the district court adjourned at the -conclusion of its February sitting, which was of short duration, until the 10th day of May, 1909; that in the
It thus appears that the only question for determination in this case is whether or not the defendant Oleson made the agreement with plaintiffs’ attorney, H. C. Brome, as alleged in their petition, and upon this issue the burden of proof rests upon the plaintiffs to establish the making of that agreement by a preponderance of the evidence.
It appears from the record and bill of exceptions that upon that issue the plaintiffs produced Mr. Brome as a witness, who testified, in substance, that, when the agreement between his clients and the Cunninghams was completed, he said to Mr. Oleson: “Now, I understand you have a mortgage decree, and sale has been made and not confirmed on this property. Mr. Cunningham tells me that you are perfectly willing to wait until we sell this property for your money; that the sale won’t be confirmed until we make this arrangement, and I want this understood between us,” that Mr. Oleson said, “that would be all right.” He further stated that there was no other conversation between them about the confirmation.
On the other hand, it appears that, by his testimony,
Mr. McGuire, by his testimony, corroborated the testimony of Mr. Oleson. It also appears that the plaintiffs took the deposition of Martin Cunningham to maintain the issues on their part, but did not offer it in evidence on the trial. It was read in evidence by the defendants to support their view of the case, and it fully corroborates the testimony of Mr.’ Oleson. It appears, without dispute, that, when the district court convened again on the 10th day of May, 1909, Oleson moved for a confirmation of the sale, and the court made the first order to show cause by the following morning why the sale should not be confirmed. N.o cause was shown, the sale was confirmed, and the deed ordered. It further appears, without dispute, that no notice of the motion to confirm the sale other than that of the first order was given to the plaintiffs, and that, as a matter of fact, they did not know until some time after the order of confirmation was entered that the sale had been confirmed.
There was other testimony in the case upon other questions, but the foregoing comprises the substance of all of the evidence introduced by either .party upon the main issue. As we view the record, the plaintiffs failed to sustain the allegations of their petition by a preponderance of the evidence, and therefore the judgment of the district court was wrong and should be reversed.
It may be further said that the record discloses that the land was sold subject to the mortgages of the Security Mutual Life Insurance Company and John Tierney, Sr.; that, after the order of confirmation was entered the
It may be further said that there is nothing in the record to show that the land was sold for an inadequate price; and, while some evidence was produced which tended to show that the land at the time of the trial was worth about $12,000, still there was no offer on the part of the plaintiffs to pay that sum for it. Neither was it shown that there was any reasonable prospect of their selling the land for any amount in excess of the sum bid for it at the sheriff’s s.ale.
We gather from the record that it would be useless to send this case back to the district court for a new trial, for it seems clear that no other or further evidence can be produced by either party.
For the foregoing reasons, the judgment of the district court is reversed, and the plaintiffs’ action as against the defendants Andrew E. Oleson, Helen Oleson, Martin Cunningham and Anna Cunningham is hereby dismissed; and it appearing that the defendant the Security Mutual Life Insurance Company has prayed that its mortgage be not foreclosed, but that it only be declared a first lien upon the land in question, it is so found, and the action is dismissed without prejudice to any of its future rights. It further appearing that defendant John Tierney, Sr., has not asked for a foreclosure of his mortgage, the action as to him is dismissed without prejudice to the right to maintain a future foreclosure suit.
Judgment accordingly.
Dissenting Opinion
dissenting.
John Tierney, Sr., had a farm in Cuming county, which is said by one of the witnesses to be worth $12,000, and he also had several lots in Scribner. There was a mortgage on the farm of $3,000, so that Tierney’s in
Evidently Oleson is mistaken in supposing that by his agreement to delay the confirmation he placed himself under obligation to his client Cunningham only. He knew what the parties were agreeing to do, and that those who were contesting with his clients would not enter into this contract if the sale was to be confirmed without their knowledge, and so as to give the entire property to Oleson and his client, without giving them an opportunity to avail themselves of that part of the agreement that -was in their interest, Oleson agreed to the entire contract and so became a party to it; and whether it was at the request and for the benefit of his client, Cunningham, or for his own benefit, or both, would make no difference. His mortgage was given by the Cunninghams. Oleson’s interest in the property depended upon the validity of the deed from Tierney to
I think the judgment of the trial court was right.