Prudential Real Estate Co. v. Hall

JAOKSON, C. This action presents another feature of the scavenger act, and grows out of a controversy over the confirmation of the sale of tract No. 18,264, being a part of lot 6, block 9, in McCague’s addition to the city of Omaha. The decree included a considerable amount of special taxes and assessments. The tract was sold March 15, 1905, to D. C. Patterson, trustee, for $50, to whom a certificate of sale was issued, which was afterwards assigned to the Prudential Real Estate Company, the appellant herein. Thomas F. Hall became the owner of the equity of redemption after the tax sale, and Fred Sellick was his tenant. Final [806] notice of an application to confirm the sale was served on Hall and Sellick on the 13th day of .December," 1906. The entry in the confirmation record is of the date of March 14, 1907, and on March 36, 1907, at the February term of the district court for Douglas county, an order confirming the sale was entered. On the 20th of that month, and at the same term of court, Ilall filed a motion to set aside and vacate the order of confirmation, accompanied by objections to the confirmation of the sale, supported by a showing of the reasons why objections were not sooner made. On March 23, at the same term of court, the order of confirmation was vacated, and permission given to file and enter objections to confirmation. On April 2 of that year supplemental objections were filed, charging in effect that all persons occupying the tract had not been served with notice of the application to confirm, and that the court had no jurisdiction to enter the confirmation of sale; that the city council of the city of Omaha, in whose behalf the special taxes and assessments had been levied, had passed a resolution instructing the tax commissioner or other officer of the city to be present at the sale of all property under the decree involved, and to bid on behalf of the city of Omaha on all properties offered for sale a certain percentage of the assessed valuation as made by the tax commissioner; that such percentage should stand as the lowest bid to be received on any property within the city of Omaha at such sale; that such resolution was published in the daily papers of the city of Omaha prior to the sale in the fall of 3904 and the winter and spring of 1905, and that it was understood by all persons intending to participate in said sale that no bid would be received on any city property for less than the percentage named in said resolution; that Thomas F. Hall intended to be present at the sale and bid a sum largely in excess of the suin bid by Patterson, but that he was induced and influenced to remain away from the sale, and took no part therein, by reason of a conversation with the tax commissioner of the city of Omaha, who informed him that no bids would [807] be received of a sum less than the percentage required by the resolution adopted by the city council; that such percentage exceeded the amount which Hall intended to bid for the tract, and that Hall had no notice of the fact that sale had been made to Patterson until long after the date of such sale; and that all these facts were known to Patterson. Upon the hearing of the objections to the confirmation of the sale, the sale was vacated upon the condition that, if a supersedeas was not filed for the - purpose of a revieiv in this court, Thomas F. Hall should deposit with the county treasurer of Douglas county the sum of $300 as a guarantee that he would bid at least that amount at the next sale of the property. The Prudential Real Estate Company appeals. The first assignment of error discussed relates to the order of the trial court setting aside the confirmation of the sale. It is a familiar rule, however, that the power of the district court over its own judgments during the term at which the judgment is rendered is discretionary, and is not subject to review in this court. So that we come at once to the question of the correctness of the ruling of the district court in vacating the sale. The decree, as affecting the tract involved, was by default, and by it the OAvner Avas not deprived of the legal right to have the validity of the taxes determined prior to the confirmation of the sale. State v. Several Parcels of Land, 75 Neb. 538. There is no complaint that the evidence is insufficient to sustain the judgment, if, as a matter of law, the court had jurisdiction to entertain the application, and it is recommended that the judgment be affirmed. Ames and Calkins, CC., concur. By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is Affirmed. The following- opinion on rehearing was filed April 10, 1908. Former judgment of affirmance adhered to: 1. Taxation: Judicial Sale: Power oe Court. The court is the vendor in a judicial sale, and he may reject any bid which for any reason appears to him to be inadequate, and while a proceeding remains within his jurisdiction he may vacate any erroneous or improvident order he may have made during its progress. This power is not affected by the statute providing a procedure for the collection of taxes, and commonly called the “Scavenger Act.” 2. Judicial Sale: Jurisdiction: Estoppel. When the owner of property sold at judicial sale moves the court to deny confirmation because of inadequacy of price, and offers in event of resale to increase the bid thereat, he, by so doing, admits the jurisdiction of the court and confesses the justice of the decree of sale, and is estopped afterwards to dispute either.