Medland v. Van Etten

Epperson, C. This is an appeal from an order of the district court for Douglas county confirming a sale of real estate made under a decree for the foreclosure of a tax sale certificate. The decree of foreclosure was entered May 2, 1894, and the appellants prosecuted proceedings in error in this court, seeking to reverse the decree of foreclosure, which was, however, affirmed. See Van Etten v. Medland, 53 Neb. 569. The mandate then issued commanded the lower court to cause execution to issue, carrying into effect the said judgment in the manner provided by law. On November 6, 1902, an order of sale was issued to the sheriff of Douglas county, who proceeded to sell the property named in the decree, complying with all statutory provisions. The appraisers valued the property at $2,000, and from this deducted the amount of prior liens $701.82, appraising the interests of the appellants at $1,298.18. The property was sold: on the 23d of Decern [796] ber, 1902, by the sheriff to Florence Leavitt, trustee for the plaintiff, for $900. Prior to the sale appellants filed objections to the appraisement, and immediately after the sale filed a motion to set the same aside. On the first day of August, 1904, the district court overruled the motion to set aside the sale, and granted the appellee’s motion to confirm. From this order the defendants appeal. Several questions are presented which demand separate consideration. First. Appellants insist that the property sold is not the property covered by the lien foreclosed. The petition describes the property as follows: “Sublot thirteen (13) of lot nine (9), Capitol Addition, or more particularly described as follows: All that piece or parcel of land commencing at the point on the south line of Harney street, eighty-one (81) feet west of the west line of C. W. Keyes’ land, running thence west forty (40) feet, thence south one hundred and twenty (120) •feetj thence east forty (40) feet, thence north one hundred and twenty (120) feet to the place of beginning.” In their answer appellants denied that said property was more particularly described as recited in the petition, and alleged that it was more particularly described as follows: “Commencing at a point in the south line of Harney street seventy-four (74) feet west of C. W. Keyes’ land, and running thence west on the south line of Harney street fifty-one (51) feet to a stake, thence south one hundred and twenty-six (126) feet to a stake, thence east fifty-one (51) feet to a stake, and thence north one hundred and twenty-six (126) feet to the place of beginning; that said last described land is the only sublot thirteen (13) in lot nine (9) in Capitol Addition to the city of Omaha.” The court found that the more particular description of said sublot thirteen (13), in block nine (9), was as alleged in the answer, reciting in decree of foreclosure the description thereof by metes and bounds, and ordered “that the property above described, to wit, sub-lot thirteen (13) of lot nine (9), in Capitol Addition to [797] the city of Omaha, be sold, and an order of sale shall issue,” etc. It is apparent that the property described in the decree was sublot thirteen (13) of lot nine (9), in Capitol Addition, and that that was the property sold. If an error, the appellants’ remedy existed at that time; they had an opportunity then to challenge the trial court’s attention thereto in their motion for a new trial, and to present it to this court in their petition in error, in their proceeding then instituted to procure a reversal of the decree of foreclosure. The presenting of this question now, in opposing the confirmation, is in the nature of a collateral attack upon the decree, to which it is not subject. Logan County v. McKinley-Lanning L. & T. Co., 70 Neb. 399. This question goes to the merits of the case, and is not now subject to review. Thompson v. Purcell, 63 Neb. 445; Beatrice Paper Co. v. Beloit Iron Works, 46 Neb. 900. Second. As a further reason for setting aside the sale, appellants claim that the decree had become dormant, and proceedings thereunder barred by limitation. Section 482 of the code prescribing when judgments shall become dormant, and the lien thereof cease to exist upon real estate, does not refer to decrees for the foreclosure of tax certificates. Herbage v. Ferree, 65 Neb. 451. Appellants, however, rely upon section 509 of the code, which also, we believe, refers to judgments in personam only. But, if otherwise, by express terms it defeats the appellants’ contention. It provides, among other things, the following : “But in all cases where judgment has been, or may be rendered in the supreme court, and any special mandate awarded to the district court to carry the same into execution, the lien of the judgment creditor shall continue for five years after the first day of the next term of the district court to which such mandate may be delivered.” The mandate was filed in the clerk’s office July 26, 1898, and the order of sale issued within five years thereafter. The decree has never become inoperative by lapse of time. [798] Third. It is claimed that, in arriving at the value of appellants’ interest, the appraisers deducted from the real value subsequent and not prior liens. The amount deducted as prior incumbrance was the sum of the taxes levied for general revenue purposes for the years 1894 to 1902, inclusive, as shown by the certificates of the county and city treasurers. The lien foreclosed was a certificate for the sale of taxes levied for the year 1886. Taxes levied subsequent to the date of the certificate constituted a lien superior to the lien of the certificate, and the sum thereof was properly deducted from the real value. Fourth. The appellants, for a further reason, maintain that the property was fraudulently appraised too low. All evidence presented as to the value of the property was by affidavits, and very unsatisfactory. The appraisement of the property November 12, 1902, fixed the amount of the minimum1 bid which the sheriff was authorized to receive. In support of this allegation appellants introduced in evidence affidavits used at a former hearing, which related to the value of the property in 1891. Counter-affidavits indicated the value in June, 1904. Such proof is not entitled to consideration, as it goes to show the value at times so distant from the date of the appraisal that we cannot reasonably presume that the property did not change in value. A few affidavits were, however, relevant. The appellant David Yan Etten himself recites that the buildings upon the premises are of the value of $4,000; and another affiant informs the court as follows: “I unhesitatingly say that any appraisement of said property at $2,000, or any approximate sum, is not only inadequate, but a gross fraud.” And C. D. Hutchinson says: “I have no hesitancy in saying that any appraisement of said property for the sum of $2,000, or several times that sum, is not only a fraud, but a gross outrage.” No other evidence was given to impeach the appraisement, and the affidavits submitted are insufficient for that purpose. The appraisers were disinterested, and were acting under oath, and their valúa [799] tion should not be discarded except upón evidence of fraud. Fifth. It is argued that the sale should be set aside because it is not shown that the purchaser is plaintiff’s trustee as she claims to be. The sheriff’s return designated the purchaser as trustee for the plaintiff. No other evidence on this point is presented. In an issue joined between the sheriff and the plaintiff, or between the plaintiff and purchaser, this would not be competent evidence, but appellants are not concerned in the relationship existing between the appellee and purchaser, and cannot be heard to complain. Sixth. Appellants complain that the trial court received evidence in the absence of the appellants, and in support of this contention gave evidence, embodied in an affidavit, that the judge, prior to his decision, and while he had the matter under consideration, in answer to a question asked by the affiant, made the statement: “That he would not make said decision until he went up .with a good real estate man to advise him as to the value of said property, and examine it.” And further, that the judge Avas seen in the vicinity, apparently observing the premises, with a companion unknoAvn to affiants. This is insufficient for the purpose of showing that the court considered or heard evidence other than is presented in the bill of exceptions. The vieAving of the premises by the judge who heard and decided the motion is not error. The proceedings in the district court were regular, and we recommend that the judgment be affirmed. Ames and Oldham, CC., concur. By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is Affirmed.