Drew v. Kirkham

Cobb, J. This is an appeal from an order of the district court confirming the sale of mortgaged premises. The exceptions to the report of said sale contain the following eight points : I. The appraisement made for the purpose of making «said sale was not made according to law. II. Said appraisement was made far below the actual value of said lands and premises. [480] III. That the appraisers, in making said appraisement, took in consideration and treated as a lien on said land the very claim or mortgage debt on which this order of sale is made. IV. That said appraisers only appraised the interest of said defendants in all of said lands at $143.77, when the said land is shown to be worth a larger amount than that sum, to-wit: $2,500. V. That the appraisers took into consideration and treated as a lien a mortgage made by the defendant to John Eitzgerald, for the sum of $450 and interest, when the said mortgage had been fully satisfied, and was no subsisting lien on the land, and was a subsequent mortgage to the said plaintiff’s mortgage on which the sale was made, and the said Eitzgerald mortgage was on record in said county at the time the said plaintiff commenced her said action, and said Eitzgerald should have been made a party to litigate his lien. VT. That the county clerk, the clerk of the district court, the county treasurer, and appraisers exercised judicial powers in passing on the validity of said liens, which is contrary to the constitution of the state of Nebraska. VII. That there was no legal notice given of such sale. That from the return of said sale it does not show that the sheriff making said sale caused public notice of the time and place of sale to be given, for at least thirty days before the day of sale, by advertisement in some newspaper printed in said county of Cass. VUL That the return of the sheriff does not show that the said sheriff, advertised said land by putting an advertisement on the court house door, and in five other public places in the county of Cass, two of which were to be in the precinct where such lands and tenements lie, etc. [481] The first objection is too general in its terms to entitle it to any consideration. The second objection cannot be considered for the reason that there was no evidence before the district court, nor is there any before this court, showing or tending to show the value of the said lands. The third objection shows the sheriff and appraisers in a somewhat ridiculous light. It was manifest misconduct on their part to treat as a lien and deduct from the value of the land the amount of the mortgage, to satisfy which they were about to sell the land. But it seems that the appellant was not prejudiced thereby. The gross value of the lands, as fixed by the appraisers, without deducting anything for liens or incumbrances, was $2,500. The amount for which the land was bid off and sold was $1,675, something over two-thirds of its appraised value. The above equally applies to the fourth and fifth objections, with this in addition as to the fifth objection, that there was nothing before the district court, nor is there anything before this court, in the nature of evidence tending to show that the Fitzgerald mortgage had been paid. As to objection six, the officers therein mentioned, other than appraisers, do not exercise judicial powers in passing upon the validity of such liens under the act entitled “ An act for the more equitable appraisement of real property under judicial sale.” Laws, 1875, p. 60. On the contrary, such acts are purely ministerial. The county clerks, clerks of the district courts, and county treasurers are required to report the several liens as they find them of record in their respective offices, and they do not pass on their validity. Sessions v. Irwin, ante p. 5. As this cause was not argued before this court, and the appellant has furnished no brief, we are left somewhat in the dark as to the point sought to be made by [482] Mm in Ms seventh, and eighth exceptions. Especially in view of the fact that this court had already, in Parrat v. Neligh, 7 Neb., 456, held, “tbat where tbe officer has caused public notice of tbe time and place of sale to be given for at least thirty days before tbe day of sale, by advertisement in some newspaper printed in tbe county, it is unnecessary to post notices of tbe time and place of sale.” And tbe sheriff states in bis return in tbis case, tbat “ on tbe twenty-fourth day of July, a.d. 1877, I caused a notice to be published in tbe Nebraska Plerald, a newspaper printed and in general circulation in said county, tbat I would offer said real estate for sale at tbe south door of tbe court bouse, in said county, on tbe twenty-seventh day of August, a.d. 1877, at 11.45 o’clock a.m. of said day,” etc. Giving tbis language its plain and ordinary meaning, we think it means tbat tbe newspaper in which tbe notice was published was printed in Cass county, as well as being of general circulation therein. Failing to find any error in tbe record, tbe order of confirmation is affirmed. Order aeeirmed.