Viergutz v. Aultman

46 Neb. 141 | Neb. | 1895

Norval, C. J.

The object of this proceeding is to obtain a review of an order of the district court confirming the sale of a quarter section of land sold upon execution. The record discloses that on the 8th day of December, 1890, Aultman, Miller & Co. recovered a judgment in the county court of Wayne county against Wielhelm Viergutz in the sum of $185.62, which was subsequently transcripted to the district court of the county for the purpose of making the same a lien upon the real estate of the debtor in the county. At the date of the filing of the transcript Viergutz owned 160 acres of land in the county, upon which he resided with his family as a homestead, and continued so to do until about December 28,1891, when he sold and conveyed the tract to Julius A. Sanders, one of the plaintiffs in error herein, for $2,500. From said sum the purchaser deducted the amount of all mortgage liens and taxes against the property and the sum due upon the judgment aforesaid. The remainder of the purchase price was paid to the vendor. In August, 1892, Aultman, Miller & Co. assigned the judgment to Horace McBride, one of the defendants in error, who subsequently caused an execution to be issued on said transcripted judgment by the clerk of the district court, which was levied by the sheriff upon the quarter section in controversy. The land was duly appraised and advertised, and was sold to D. C. Main. Prior to the sale Viergutz served a notice in writing upon the sheriff, claiming the land exempt as a homestead, and, upon the return of the execution into court, Viergutz and Sanders objected to the confirmation on the ground that the land was not liable to sale upon execution, because it was a homestead when the judgment was obtained and filed and thereafter until the conveyance to Sanders was made. The objection was overruled and the sale confirmed. No question was made in the lower court, nor is any point here urged, as to the regularity of the sale, but it is insisted that the judgment was not a lien upon the land. The evidence fully establishes that the property was at all times the homestead of Viergutz so long as he remained the owner thereof, and that his interest therein above the mortgage liens was much less than $2,000. Therefore, the judgment was not a lien upon the property. (Hoy v. Anderson, 39 Neb., 386.) Evidence was introduced tending to show that when the conveyance was made to Sanders the amount due upon the judgment was deducted from the consideration and that the purchaser assumed the payment of the judgment. The court found that there was no agreement between Viergutz and Sanders whereby the latter should pay the judgment, and, we think, there is sufficient evidence in the record before us to sustain the finding.

It is argued by counsel for defendants in error that Sanders, the vendee of Viergutz, is estopped from now asserting that the judgment is not a lien upon the land, as against Horace McBride, the purchaser and owner of the judgment. This position is unassailable. The proofs are uncontradicted to the effect that in August, 1892, Aultman, Miller & Co. were threatening to enforce the collection of the judgment against Sanders, and the latter, being then unable to pay it, represented to McBride that he had bought the land and that the judgment, was a lien thereon, and he would pay it. Upon these representations McBride was induced to purchase the judgment, he agreeing to extend the time for payment several months. We are constrained to hold that Sanders is estopped from claiming that the judgment was not a valid lien upon the land, although as a matter of fact it was not a lien. (Kruger v. Adams & French Harvester Co., 9 Neb., 526; Koch v. Losch, 31 Neb., 625; Grant v. Cropsey, 8 Neb., 205; Newman v. Mueller, 16 Neb., 523.) The facts constituting the estoppel are well pleaded, and the evidence supports the findings of the court.

Complaint is made in the brief of the admission of incompetent testimony. This objection is of no avail, for two reasons:. First, because the point is not raised either in the motion for a new trial or in the petition in error, and second, the hearing was before the court without a jury, and in such case error in the admission of testimony is not alone sufficient cause for reversal of a judgment by a reviewing court. This has been too often held by this court to require the citation of authorities in support thereof. The order confirming the sale is

Affirmed.