Bank of Salem v. Cornell

Barnes, J. Appeal from an order of the district court for Richardson county confirming a. sale of real estate to satisfy a [611] decree of foreclosure. It appears that on the 21th day of February, 1911, a decree whs rendered' against Lyman B. Cornell in favor of the Bank of Salem for the foreclosure of its mortgage on two quarters of land situated in said county, and in favor of certain other mortgagees and lienholders, who were all made parties to the action. The decree found the several different sums due from the defendant Cornell, which were liens upon the land, amounting in all to $24,671.55. An order of sale, which contained a copy of the decree, was issued on the 2d day of February, 1912. The sale took place on the 23d day.of March of that year at 10 o’clock A. M. One quarter of the land was purchased by C. M. Heinzleman and-the other by one W. P. G'obel. It' further appears that the two quarter sections of land were appraised separately. The quarter section about which there is no controversy was valued at the gross sum of $12,800, and the other was appraised at the gross sum of $12,000, the total gross appraised value of the land being $24,800. The appraisers deducted front the gross value of the quarter section in question the sum; of $253.43, which was the amount of the unpaid taxes thereon, thus leaving the appraised value at the sum of $11,746.57, and the sheriff stated as his conclusion at the-end of his appraisement that the interest of the defendant in that quarter section was nothing. After the sale was "made, the defendant filed an objection to the appraisement, alleging that the land was erroneously appraised because the several mortgages and liens merged in the decree were all included in the certificate of liens and were deducted by the appraisers from the value of the interest of Cornell in the mortgaged property. When the case came on for confirmation, the defendant filed a motion, based upon his objection above mentioned, to set . aside the sale. The motion was overruled and the sale was confirmed. The defendant now contends that the court erred in overruling his objections and confirming the sale. It is.quite apparent that the sheriff in making the appraisement thought that, when the several liens established by the decree were satisfied, the defendant would have no. [612] interest in the premises, and so stated at the conclusion of the appraisement. In such case an objection to the appraisement, in order to be available, should have been filed before the sale took place. Bernheimer v. Hamer, 59 Neb. 733; Northwestern Mutual Life Ins. Co. v. Marshall, 1 Neb. (Unof.) 36; Mills v. Hamer, 55 Neb. 445; Security Investment Co. v. Sizer, 58 Neb. 669. In the case last cited it was said: “It is too late, after a sale of real estate under a decree of foreclosure, to question the correctness of the appraisement except for fraud.” In the case at bar there is no allegation, and no showing, of fraud. There is nothing in the record showing, or tending to show, that the land in question brought any less at the sale, by reason of the irregularity in the .appraisement complained of than it would have brought under other circumstances! It is conceded that the defendant’s land was sold for much more than two-thirds of the gross amount of the appraisements. As we view the record, the defendant’s objections to the confirmation were without substantial merit, and the judgment of the district court is Affirmed. Morrissey, C. J., Letton and Fawcett, JJ., not sitting.