Clark & Leonard Investment Co. v. Hamilton

Sullivan, J. To reverse an order of the district court of Lancaster county confirming a sale of real estate made under a decree of foreclosure Belle V. Hamilton and William S. Hamilton have brought this case here by appeal. Two objections to the confirmation are argued in appellants’ brief. We will consider them in the order of their presentation. The decree of foreclosure was rendered on the 29ih day of March, 1893, and on the 29th day of August, 1894, the clerk of the district court issued, and there was filed in the office of the register of deeds of said county on the same day a certificate of satisfaction of the mortgage which was the basis of the decree. This certificate was so issued and filed pursuant to the provisions of section 83ft and 837) of article 1, chapter 18, Compiled Statutes 1897. There was, in truth, no satisfaction of the mort [96] gage, and tlie certificate of the clerk reciting satisfaction was false in fact and improAddeutlv issued. On NoAember 17, 1896, a sale of the mortgaged premises under the decree in question Avas vacated for alleged irregularitj' and an order for another sale Avas entered on the records of the court. This order directs “that said sheriff proceed forthwith again to sell said property pursuant to the terms of said decree under the appraisement as heretofore made by him.” Counsel for appellant, in effect, contends that the district court possessed no power to carry its decree into execution until the certificate of satisfaction issued by the clerk and recorded by the register of deeds should be canceled and recalled. We think, however, that the existence of this certificate was not an insuperable obstacle to the enforcement of the decree. It was eAddence in the office of the register that the mortgage had been paid, and that was the full extent of its legal efficacy. It could no more suspend the force of the decree than could any other evidence of pajment. No precedent has been cited and we know of none which supports appellants’ contention. The cases denying the poAver of .the clerk to issue an execution-'upon a satisfied judgment are entirely wanting in analogy. Upon the records of the district court there is neither actual nor apparent satisfaction of the decree in this case; and the district court, since the alleged satisfaction, has specifically directed the execution of the decree as rendered. The second objection .to the confirmation is based on the failure of the sheriff to return the order of sale within sixty days from the date of its issuance. This objection was properly Overruled. In the case of Amoskeag Savings Bank v. Robbins, 53 Neb. 776, and also in the case of Jarrett v. Hoover, 54 Neb. 65, both decided at the present term, we held that the failure to return an order of sale within sixty days from its date is not a valid objection to the confirmation of a judicial sale. It. follows that the judgment of the district court is right and should be Affirmed.