Rife v. Swanson

Letton, J. In this case plaintiff Austin recovered a decree of foreclosure for. $10,188 which is a first lien on 320 acres of land. Charles G-. Lane is the owner of a fifth lien on the same property amounting to $24,022. On March 24, 1921, at the sale under the decree, the property was sold to Lane for $22,500. Objections to confirmation were filed by Swanson, the owner of the equity of redemption. These objections were overruled, and the sale confirmed on June 3, 1921. After the deduction of costs and expenses and the amount due prior lien-holders, there was applicable on the lien of Lane from the proceeds of’ the sale $3,411.51. Swanson gave a supersedeas bond for appeal from the confirmation. On July 11, 1921, at the same term of court, Swanson moved to set the sale aside for the reason that, the purchase price hád not been paid to the sheriff.' Plaintiff Austin and cross-petitioner Drake, the holder of the second lien, also filed a motion setting forth that the amounts ordered to be paid to them by the sheriff from the proceeds of sale are now wholly insufficient on account of the accrual of interest, and pray [816] ing: (l)..That Lane be ordered to pay the full amount -, of Ms bid; (2) or that security be given by Mm, and that upon the disposal of the appeal 'by Swanson he will pay his bid with interest on the decree prior to his; (3.) or-that the order of confirmation be modified.- to provide for the payment of interest on decrees to the date of their , payment ; (4) or that the order of confirmation be-vacated and the real, estate ordered resold at Lane’s cost* The court found that-. Lane had failed. to make payment of his bid. The sale was set aside, and the -order-of - confirmation vacated. . The, supersedeas bond given by Swanson was canceled, and a resale ordered at the cost of Lane and. at his risk and loss, in case, the,-said real estate upon a resale shall bring less,than the amount of the bid therefor at the sale. The court refused to grant a supersedeas, and Lane appeals. • It is held in Gosmunt v. Gloe, 55 Neb. 709: “Sales under . executions and decrees of foreclosure are made for cash, and the person making , such sale .should - require the . purchaser to pay the amount of his -bid at the time of the ¡sale. If the officer fails to .do- so and reports-the sale, he is liable for the purchase price.” The practice in this state for many years by most sheriffs has ¡been to. require, at the time of sale, a deposit of enough of the purchase price to cover sale costs, and to wait for the balance of the money until at, or just before, the confirmation of the sale. -If this is done, the sale will be upheld. Had the sheriff insisted upon this, as he had the right to do, no trouble would have ensued. Under our former decisions, the court might have enforced the payment of the purchase price by proceedings in contempt (Phillips v. Dawley, 1 Neb. 320), or the sheriff might have sued Lane to recover the purchase money (Jones v. Null, 9 Neb. 254; Maul v. Hellman, 39 Neb. 322). Other cases bearing on the question are Gregory v. Tingley, 18 Neb. 318; Penn Mutual Life Ins. Co. v. Creighton Theatre Building Co., 51 Neb. 659. The court also had the power,-the purchaser having failed [817] to- comply with his bid, to set the sale aside at his costs and expenses, and to compel him to make good any deficiency in the purchase price at the resale from the ■ amount of his bid at the former sale. Rowley v. Feldman, 82 N. Y. Supp. 679; Camden v. Mayhew, 129 U. S. 73; 24 Cyc. 45. Lane is' not offering upon this appeal to comply with his bid, but is here objecting to the order of resalé at his risk. "We are of the opinion that he has no substantial, reason to complain of the order. The district court might have applied a much more drastic and summary remedy. ■ ’ It is said that-the court should have made an .order" to show cause why he should not comply with his bid before setting the sale aside, but we fail to see any reason for this. The motion was made the day before the order was entered. All parties were in court, and it is evident that- he did not desire or intend to pay. the purchase price. "He had madé no effort to comply with his bid from' March 24 to July 11, and he made no request for time when the motion was filedi The order of the district court is Affirmed.