Young v. Wood

63 Neb. 291 | Neb. | 1901

Holcomb, J.

Motion was offered to have set aside an appraisement made for the purpose of a judicial sale of real estate under a decree of foreclosure, as was also an objection to confirmation, and overruled, from which the defendant appeals. The grounds of the motion and the objection will be noticed in the order argued, in appellants’ brief.

The certificates of the county and the city treasurers as to tax liens are objected to because of the form thereof. Application was made for a certificate showing all existing liens against the property as shown by the records of the office to which addressed. The county treasurer, in response to the application made to him, certified that there were no unpaid taxes or unredeemed tax sales, except— then folloAvs a description of the property, the different years for which taxes were due, and the aggregate of the unpaid taxes. This was equivalent to saying that the taxes levied against the land described in the. certificate for the years mentioned were not paid, and was sufficient evidence to authorize the appraisers to deduct the amount thus mentioned from the gross appraisement of the land as a prior incumbrance thereon.

It is also contended that the certificates thus made are invalid and of no force because no seal of the county or city treasurer was attached thereto. But this is not required by an officer who has not been provided by law with a seal of his office. Orcutt v. Polsley, 59 Nebr., 575.

Objection is also made because tbe county treasurer certified to the aggregate sum due for taxes for different years, instead of giving the amounts due for each of the years covered by the certificate. No claim is made of any error or mistake in the amount actually due and we fail to perceive how any of the landowners’ substantial rights were affected. The only question that could be involved is whether the amount deducted for taxes was greater than was in fact due. Prejudicial error does not affirmatively appear, and the objection for that reason is without merit. Tillson v. Benschoter 55 Nebr., 443.

It is also contended that the record shows that the sheriff, John McDonald, personally summoned and administered the oath to the appraisers, while the appraisement shows they were summoned and sworn by Geo. Hill, deputy sheriff. The proceedings had, as disclosed by the record when considered together and in connection with the officer’s return, reveal that the deputy sheriff mentioned was acting in the place of and for the sheriff, and 'did all the acts required to be done in the name of the sheriff, by and in virtue of his office as deputy sheriff. What we have said on this point at the present sitting in the case of Richardson v. Hahn, 63 Nebr., 294, applies with equal pertinency to the case at bar, and will not further be dilated on. The contention is not well grounded.

Lastly, it is urged that the sale was improperly made and confirmed because the order of sale was not returned within sixty days, as is required when real property is sold under a general execution. But this is not required, as we have repeatedly held, when the authority of the officer to act is grounded on a decree directing the sale of the property found to be subject to a lien established by such decree, and for the satisfaction of which the property is ordered by the court to be sold “as upon execution.” The latter words refer to the method of making the sale, and not the time in which the sheriff is to execute the decree of the court. Amoskeag Savings Bank v. Robbins, 53 Nebr., 776. The authority to sell is derived from the decree of foreclosure, and not from the order of sale issued by the clerk of the court. Passumpsic Savings Bank v. Maulick, 60 Nebr., 469. The sheriff was acting as the agent of the court, and it was unnecessary for the clerk to issue any formal order of sale. Bristol Savings Bank v. Field, 57 Nebr., 670; McKinley-Lanning Loan & Trust Co. v. Hamer, 52 Nebr., 709.

The rulings made by the trial court of which complaint is made are accordingly

Affirmed.