Klein v. Oakland/Red Oak Holdings , 294 Neb. 535 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
KLEIN v. OAKLAND/RED OAK HOLDINGS
Cite as 294 Neb. 535
Jeremy L. K lein and K imberly J. K lein, husband
and wife, and Robert D. Lynch and Elaine M.
Lynch, husband and wife, appellees, v.
Oakland/R ed Oak Holdings, LLC,
a Nebraska limited liability
company, appellant.
___ N.W.2d ___
Filed August 26, 2016. No. S-15-380.
1. Trusts: Equity. An action to set aside a trustee’s sale sounds in equity.
2. Equity: Appeal and Error. On appeal from an equity action, an appel-
late court tries factual questions de novo on the record and, as to ques-
tions of both fact and law, is obligated to reach a conclusion independent
of the conclusion reached by the trial court, provided that where credible
evidence is in conflict in a material issue of fact, the appellate court
considers and may give weight to the fact that the trial judge heard
and observed the witnesses and accepted one version of the facts rather
than another.
3. Evidence: Stipulations: Appeal and Error. In a case in which the facts
are stipulated, an appellate court reviews the case as if trying it origi-
nally in order to determine whether the facts warranted the judgment.
4. Trusts: Deeds: Sales. The Nebraska Trust Deeds Act, Neb. Rev. Stat.
§ 76-1001 et seq. (Reissue 2009), authorizes a trust deed to be used as a
security device in Nebraska and provides that real property can be con-
veyed by trust deed to a trustee as a means to secure the performance of
an obligation.
5. ____: ____: ____. The Nebraska Trust Deeds Act, Neb. Rev. Stat.
§ 76-1001 et seq. (Reissue 2009), includes detailed procedures that, in
the event of a breach of the underlying obligation, permit the trust prop-
erty to be sold without the involvement of any court.
6. ____: ____: ____. The Nebraska Trust Deeds Act, Neb. Rev. Stat.
§ 76-1001 et seq. (Reissue 2009), allows a trust deed to expressly confer
upon a trustee the power of sale.
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KLEIN v. OAKLAND/RED OAK HOLDINGS
Cite as 294 Neb. 535
7. ____: ____: ____. Pursuant to the power of sale, a trustee can sell the
property conveyed by a trust deed without any court’s authorization or
direction, though the trustee must comply with procedural requirements
contained in the Nebraska Trust Deeds Act, Neb. Rev. Stat. § 76-1001 et
seq. (Reissue 2009).
8. Trusts: Deeds: Foreclosure: Mortgages: Words and Phrases. Because
the Nebraska Trust Deeds Act, Neb. Rev. Stat. § 76-1001 et seq.
(Reissue 2009), allows the property securing an obligation to be sold
without the judicial involvement that would be required to foreclose
upon a mortgage, the proceedings surrounding a trustee’s sale pursu-
ant to the act are sometimes referred to as “nonjudicial foreclosure” or
“trustee foreclosure.”
9. Trusts: Deeds: Statutes. Because trust deeds do not exist at common
law, the trust deed statutes are to be strictly construed.
10. Real Estate: Notice. A purchaser of real estate is required to take notice
of instruments properly placed of record in the office of the register
of deeds.
11. Deeds: Warranty: Title. Increased diligence, alertness, and scrutiny in
searching for the facts are expected of a purchaser who accepts a deed
that is less than a general warranty with full covenants of ownership
and title.
12. Title. Fundamental to the law of registry is the principle of establishing
priority of title.
13. Judicial Sales: Negligence: Fraud. The doctrine of caveat emptor
applies to all judicial sales, subject to the qualification that the purchaser
is entitled to relief on the ground of after-discovered mistake of material
facts or fraud, where the purchaser is free from negligence.
14. Trusts: Sales. The doctrine of caveat emptor applies in trustee’s sales.
15. Taxes: Deeds: Title: Liens. A treasurer’s tax deed, issued pursuant to
Neb. Rev. Stat. § 77-1837 (Cum. Supp. 2012) and in compliance with
Neb. Rev. Stat. §§ 77-1801 to 77-1863 (Reissue 2009 & Cum. Supp.
2012), passes title free and clear of all previous liens and encumbrances.
Appeal from the District Court for Phelps County:
Stephen R. I llingworth, Judge. Reversed and remanded with
directions.
Mark J. LaPuzza and Ashley Dieckman, of Pansing, Hogan,
Ernst & Bachman, L.L.P., for appellant.
Natalie G. Nelsen, of Dier, Osborn, Cox & Nelsen, P.C.,
L.L.O., for appellees.
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KLEIN v. OAKLAND/RED OAK HOLDINGS
Cite as 294 Neb. 535
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
and Stacy, JJ.
Miller-Lerman, J.
NATURE OF CASE
Jeremy L. Klein and Kimberly J. Klein, husband and wife,
and Robert D. Lynch and Elaine M. Lynch, husband and wife,
(both couples collectively the appellees) purchased a trust deed
at a trustee’s sale for certain real estate. Prior to the trustee’s
sale, treasurer’s tax deeds for the same real estate had been
issued to a third party. By operation of law, a treasurer’s tax
deed passes title free and clear of all previous liens and encum-
brances, and therefore, the treasurer’s tax deeds had divested
the trust deed of title. The treasurer’s tax deeds were recorded
prior to the trustee’s sale, but the appellees failed to examine
the record prior to the trustee’s sale. The appellees brought
this action in equity against Oakland/Red Oak Holdings, LLC
(Oakland), the appellant, which was the beneficiary of the
trust deeds, seeking to set aside the sale and to be reimbursed
the purchase price of $40,001. The district court determined
that the trustee’s sale was void and ordered that Oakland
return the purchase price to the appellees. Oakland appeals.
For the reasons set forth below, we determine that the district
court erred in its determination, and we reverse, and remand
with directions.
STATEMENT OF FACTS
Our statement of facts is taken from the parties’ stipulated
statement of facts on which the case was tried to the dis-
trict court. The parties’ stipulated statement of facts provided
as follows:
1. Oakland State Bank was the beneficiary under five
deeds of trust from David Sickels and Debra Sickels.
The Deeds of Trust are attached hereto as Exhibits 1
through 5.
2. Larry Jobeun was named as Trustee under each deed
of trust and T. Randall Right was substituted as Trustee
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KLEIN v. OAKLAND/RED OAK HOLDINGS
Cite as 294 Neb. 535
on May 20, 2004. The substitution of Trustee is recorded
with the Register of Deeds of Phelps County and is
attached hereto as Exhibit 6.
3. The Deeds of Trust were recorded against the fol-
lowing real estate owned by David Sickels and Debra
Sickels: Lot Seven (7) and Eight (8), Einsel’s Second
Addition to Holdrege, Phelps County, Nebraska (such
property being hereinafter called the “real estate”).
4. Oakland State Bank was merged into Great Western
Bank in November of 2004, pursuant to Articles of
Merger filed with the Nebraska Secretary of State’s office
attached hereto as Exhibit 7. Great Western Bank assigned
the Deeds of Trust to the Defendant, Oakland . . .
on December 5, 2005, and such assignment is attached
hereto as Exhibit 8. Neither the merger of Oakland State
Bank with Great Western Bank nor the assignment from
Great Western Bank to Oakland . . . were recorded with
the Phelps County Register of Deeds or indexed against
the real estate at issue.
5. On or about March 1, 2010, the real estate taxes on
the property had become delinquent to such an extent that
the Phelps County Treasurer offered the taxes for sale
pursuant to Neb. Rev. Stat. §77-1801 et.seq. [(Reissue
2009).] Situs, LLC purchased a Phelps County Treasurer’s
Certificate of Tax Sale for the real estate which was sub-
sequently assigned to Vandelay Investments, LLC on
February 13, 2013. On or about April 18, 2013, Vandelay
Investments, LLC provided notice in accordance with
Neb. Rev. Stat. §77-1801 et.seq. Vandelay Investments,
LLC subsequently applied for a Treasurer’s Tax Deed and
a Treasurer’s Tax Deed was issued by the Phelps County
Treasurer to Vandelay Investments LLC, on July 25,
2013. Said deed was filed in the office of the Register of
Deeds on August 1, 2013. A second Treasurer’s Tax Deed
was issued by the Phelps County Treasurer to Vandelay
Investments, LLC on August 28, 2013 and filed in the
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KLEIN v. OAKLAND/RED OAK HOLDINGS
Cite as 294 Neb. 535
office of the Register of Deeds on September 9, 2013.
The Treasurer’s Tax Deeds are attached hereto as Exhibits
9 and 10.
6. The parties do not dispute the validity of the
Treasurer’s Tax Deed. The parties agree that the delin-
quent real estate taxes, notice of sale, and Treasurer’s
Tax Deed were matters of public record at the time of the
Trustee’s sale of the real estate.
7. Michael C. Klein was named Substitute Trustee
on or about July 31, 2013, for the five (5) deeds of
trust assigned to the Defendant, Oakland . . . . The
Notice of Default and Notice of Sale associated with
the Trustee’s sale are attached hereto as Exhibits 11 and
12, respectively.
8. On October 2, 2013, Defendant, Michael C. Klein
conducted a trustee’s sale for the real estate. [The appel-
lees] were the highest bidder at the Trustee’s sale and
[the appellees] paid to . . . Michael C. Klein as Trustee
the sum of $40,001.00. A copy of the Tellers Check
given to the Trustee is attached hereto as Exhibit 13.
None of the Defendants [sic] gave notice to the [appel-
lees] or any other bidders that a Treasurer’s Tax Deed
had been issued with respect to the property. On or
about October 3, 2013, . . . Michael C. Klein as Trustee,
executed a Trustee’s deed conveying to the [appellees]
the following described property: Lot Seven (7) and
Eight (8), Einsel’s Second Addition to Holdrege, Phelps
County, Nebraska.
The Trustee’s Deed is attached hereto as Exhibit 14.
9. Prior to the Trustee’s sale, neither [the appellees]
nor Defendants [sic] received actual knowledge of the
Treasurer’s Tax Deed.
10. Following the Trustee’s Sale, the [appellees]
became aware of competing claims to the title of the
Property, specifically the Treasurer’s Tax Deed issued to
Vandelay Investments.
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KLEIN v. OAKLAND/RED OAK HOLDINGS
Cite as 294 Neb. 535
On January 21, 2014, the appellees filed their complaint
against Oakland and the substitute trustee, Michael C. Klein.
In their complaint, the appellees alleged that at the time of the
trustee’s sale, Oakland had no interest in the trustee’s deed and,
therefore, no interest in the real property. The appellees alleged
that they were owed $40,001 plus interest. The appellees did
not allege in their complaint a specific basis for recovery,
such as rescission due to mistake or unjust enrichment because
of a failure of consideration; accident; inadvertence; mutual
mistake; relief from caveat emptor based on fraud, misrepre-
sentation, or mistake; or constructive fraud. Nor was the case
prosecuted on a specific theory. Compare, French Energy, Inc.
v. Alexander, 818 P.2d 1234 (Okla. 1991); First Nat. Bank v.
Board of Managers, 252 Ill. App. 3d 139, 625 N.E.2d 79, 192
Ill. Dec. 119 (1993).
On February 18, 2014, Oakland filed its answer in which
it generally denied the allegations set forth in the appellees’
complaint. Michael filed a motion to dismiss, and on May 2,
the district court filed an order in which it sustained Michael’s
motion to dismiss. The court allowed the appellees 14 days
to amend their complaint to state a cause of action against
Michael, and the court stated that if no amended complaint
was filed, the matter would proceed with Oakland as the only
defendant. The appellees did not file an amended complaint.
Accordingly, Michael is not a party to this appeal.
On April 3, 2015, the district court filed an order in which
it found in favor of the appellees and against Oakland. With
respect to whether Oakland had an obligation to notify bidders
at the trustee’s sale of the treasurer’s tax deeds, the court stated
that the parties were in equal positions prior to the trustee’s
sale and that both parties could have examined the public
records. Thus, the court determined that Oakland “did not
have an obligation to disclose the tax deeds and there was no
implied warranty to do so.”
With respect to whether the trustee’s deed contained a
representation or warranty that was breached by Oakland,
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KLEIN v. OAKLAND/RED OAK HOLDINGS
Cite as 294 Neb. 535
the district court cited Neb. Rev. Stat. § 76-1010(2) (Reissue
2009), which provides in part:
The trustee’s deed shall operate to convey to the pur-
chaser, without right of redemption, the trustee’s title and
all right, title, interest, and claim of the trustor and his
or her successors in interest and of all persons claiming
by, through, or under them, in and to the property sold,
including all such right, title, interest, and claim in and
to such property acquired by the trustor or his or her
successors in interest subsequent to the execution of the
trust deed.
Based on § 76-1010(2), the district court determined that the
trustee’s deed contained “no representations or warranty as to
the quality of title granted by the” trust deed.
With respect to whether the trustee’s deed served to convey
any rights to the appellees, the district court determined that
the trustee’s deed did not convey any rights to the appellees
because the trustee had no rights to convey. Therefore, the
district court determined that the trustee’s sale was “improper
and a nullity.” In making this determination, the district court
noted that the parties had stipulated that the treasurer’s tax
deeds were valid and that the treasurer’s tax deeds were
recorded on August 28 and September 9, 2013, which was
prior to the trustee’s sale on October 2. Citing Knosp v. Shafer
Properties, 19 Neb. Ct. App. 809, 820 N.W.2d 68 (2012), the
district court stated that a treasurer’s tax deed passes title free
and clear of all previous liens and encumbrances. Therefore,
the district court stated that “[a]ll of [Oakland’s] right, title
and interest in the real estate was extinguished by issuance of
the tax deeds and therefore [Oakland] had no interest to con-
vey. The trustees [sic] sale should be voided and the money
returned to [the appellees].” The district court ordered that
Oakland pay the appellees $40,001 plus interest. The court
also ordered that costs be taxed to Oakland and that each party
pay their own attorney fees.
Oakland appeals.
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KLEIN v. OAKLAND/RED OAK HOLDINGS
Cite as 294 Neb. 535
ASSIGNMENT OF ERROR
Oakland assigns, restated, that the district court erred
when it determined that the trustee’s sale was void and that
the appellees are entitled to a return of the purchase price
of $40,001.
STANDARDS OF REVIEW
[1] An action to set aside a trustee’s sale sounds in equity.
See Gilroy v. Ryberg, 266 Neb. 617, 667 N.W.2d 544 (2003).
[2] On appeal from an equity action, an appellate court tries
factual questions de novo on the record and, as to questions of
both fact and law, is obligated to reach a conclusion indepen-
dent of the conclusion reached by the trial court, provided that
where credible evidence is in conflict in a material issue of
fact, the appellate court considers and may give weight to the
fact that the trial judge heard and observed the witnesses and
accepted one version of the facts rather than another. RGR Co.
v. Lincoln Commission on Human Rights, 292 Neb. 745, 873
N.W.2d 881 (2016).
[3] In a case in which the facts are stipulated, an appel-
late court reviews the case as if trying it originally in order to
determine whether the facts warranted the judgment. Jacobson
v. Solid Waste Agency of Northwest Neb., 264 Neb. 961, 653
N.W.2d 482 (2002).
ANALYSIS
Oakland argues that the district court erred when it deter-
mined that the trustee’s sale was void and ordered Oakland to
return the $40,001 purchase price to the appellees. Oakland
generally argues that caveat emptor should apply and that when
the appellees purchased the trustee’s deed, they were on record
notice of the treasurer’s tax deeds that were issued to Vandelay
Investments and recorded prior to the trustee’s sale. We agree,
and we reverse the decision of the district court.
The Nebraska Trust Deeds Act, Neb. Rev. Stat. § 76-1001
et seq. (Reissue 2009) (the Act) governs this case. A “[t]rust
deed” is defined as “a deed executed in conformity with
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sections 76-1001 to 76-1018 and conveying real property to
a trustee in a trust to secure the performance of an obligation
of the grantor or other person named in the deed to a benefi-
ciary.” § 76-1001(3). The parties to a trust deed are the trustor,
the trustee, and the beneficiary. The “[t]rustor” is defined as
“the person conveying real property by a trust deed as secu-
rity for the performance of an obligation.” § 76-1001(2). The
“[b]eneficiary” is defined as “the person named or otherwise
designated in a trust deed as the person for whose benefit a
trust deed is given, or his successor in interest.” § 76-1001(1).
A “[t]rustee” is defined as “a person to whom title to real prop-
erty is conveyed by trust deed, or his successor in interest.”
§ 76-1001(4).
[4-8] With respect to the Act, we stated in First Nat. Bank
of Omaha v. Davey, 285 Neb. 835, 838, 830 N.W.2d 63, 66
(2013):
The Act authorizes a trust deed to be used as a security
device in Nebraska and provides that real property can
be conveyed by trust deed to a trustee as a means to
secure the performance of an obligation. The Act includes
detailed procedures that, in the event of a breach of the
underlying obligation, permit the trust property to be sold
without the involvement of any court. Specifically, the
Act allows a trust deed to expressly confer upon a trustee
the power of sale. Pursuant to this power of sale, a trustee
can sell the property conveyed by a trust deed without
any court’s authorization or direction, though the trustee
must comply with procedural requirements contained in
the Act. Because the Act allows the property securing an
obligation to be sold without the judicial involvement that
would be required to foreclose upon a mortgage, the pro-
ceedings surrounding a trustee’s sale pursuant to the Act
are sometimes referred to as “nonjudicial foreclosure” or
“trustee foreclosure.”
[9] We further stated in First Nat. Bank of Omaha v.
Davey that
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[t]he Act . . . “authorizes the use of a security device
which was not available prior to its enactment.” Because
the Act made a change in common law, we strictly con-
strue the statutes comprising the Act, as have previous
courts interpreting the Act. Thus, because trust deeds did
not exist at common law, the trust deed statutes are to be
strictly construed.
285 Neb. at 840-41, 830 N.W.2d at 68. In the absence of any
indication to the contrary, we also give the language of the
statutes of the Act their plain and ordinary meaning. See First
Nat. Bank of Omaha v. Davey, supra.
We have noted that Nebraska’s recording act, set forth in
Neb. Rev. Stat. § 76-238 (Cum. Supp. 2014), is intended to
impart to a prospective purchaser notice of instruments which
affect the title of land in which such a purchaser is interested.
Section 76-238(1) provides:
Except as otherwise provided in sections 76-3413 to
76-3415, all deeds, mortgages, and other instruments
of writing which are required to be or which under the
laws of this state may be recorded, shall take effect and
be in force from and after the time of delivering such
instruments to the register of deeds for recording, and
not before, as to all creditors and subsequent purchas-
ers in good faith without notice. All such instruments
are void as to all creditors and subsequent purchasers
without notice whose deeds, mortgages, or other instru-
ments are recorded prior to such instruments. However,
such instruments are valid between the parties to the
instrument.
[10-12] Section 76-238(1) is a “‘race-notice recording stat-
ute.’” Westin Hills v. Federal Nat. Mortgage Assn., 283 Neb.
960, 965, 814 N.W.2d 378, 383 (2012). We have stated that
“[a] purchaser of real estate is required to take notice
of instruments properly placed of record in the office of
the register of deeds. . . . Increased diligence, alertness,
and scrutiny in searching for the facts are expected of a
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purchaser who accepts a deed that is less than a general
warranty with full covenants of ownership and title.”
Ihde v. Kempkes, 228 Neb. 433, 436, 422 N.W.2d 788, 790
(1988), quoting Campbell v. Ohio National Life Ins. Co., 161
Neb. 653, 74 N.W.2d 546 (1956). Fundamental to the law of
registry is the principle of establishing priority of title. Westin
Hills v. Federal Nat. Mortgage Assn., supra.
Within the Act, with respect to instruments that are entitled
to be recorded and put parties on notice of such instruments,
§ 76-1017 provides:
Any trust deed, substitution of trustee, assignment of
a beneficial interest under a trust deed, notice of default,
trustee’s deed, reconveyance of the trust property and
any instrument by which any trust deed is subordinated
or waived as to priority, when acknowledged as provided
by law, shall be entitled to be recorded, and shall, from
the time of filing the same with the register of deeds for
record, impart notice of the contents thereof, to all per-
sons, including subsequent purchasers and encumbrancers
for value, except that the recording of an assignment of
a beneficial interest in the trust deed shall not in itself
be deemed notice of such assignment to the trustor, his
heirs or personal representatives, so as to invalidate any
payment made by them, or any of them, to the person
holding the note, bond or other instrument evidencing the
obligation by the trust deed.
[13] In Nebraska, we have long held that the doctrine of
caveat emptor applies to judicial sales. See, Enquist v. Enquist,
146 Neb. 708, 21 N.W.2d 404 (1946); Norton v. Neb. Loan
& Trust Co., 35 Neb. 466, 53 N.W. 481 (1892). With respect
to the application of caveat emptor to judicial sales, we
have stated:
“It is a well-settled rule that the doctrine of caveat
emptor applies to all judicial sales, subject to the quali-
fication that the purchaser is entitled to relief on the
ground of after-discovered mistake of material facts or
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fraud, where he is free from negligence. He is bound to
examine the title, and not rely upon statements made by
the officer conducting the sale, as to its condition. If he
buys without such examination, he does so at his peril,
and must suffer the loss occasioned by his neglect.”
Enquist v. Enquist, 146 Neb. at 714, 21 N.W.2d at 407, quoting
Norton v. Neb. Loan & Trust Co., supra.
We have not previously stated that the doctrine of caveat
emptor applies to nonjudicial sales, such as a trustee’s sale.
However, other jurisdictions have applied caveat emptor in
nonjudicial sales. See, e.g., McPherson v. Purdue, 21 Wash.
App. 450, 585 P.2d 830 (1978); Michie v. National Bank of
Caruthersville, 558 S.W.2d 270 (Mo. App. 1977); Feldman v.
Rucker, 201 Va. 11, 109 S.E.2d 379 (1959).
Regarding the application of caveat emptor in the context of
trustee’s sales, it has been recognized that
many courts apply a caveat emptor approach to title or
physical defects in the real estate. As one court stated:
“[T]o the bidders [the trustee] owes no duty except to
refrain from doing anything to hamper them in their
search for information or to prevent the discovery of
defects by inspection. He is under no duty to make rep-
resentations or to answer questions; but if questions are
asked and he undertakes to answer, then such answers
must be full and accurate—nothing must then be con-
cealed.” Some jurisdictions have somewhat modified this
approach by requiring the trustee to disclose material
facts within his knowledge that would not otherwise
“be readily observable upon reasonable inspection by
the purchaser.”
1 Grant S. Nelson et al., Real Estate Finance Law § 7.22 at 979
(6th ed. 2014).
[14] In Michie v. National Bank of Caruthersville, supra,
the court stated in a trustee’s deed case that “[a] purchaser at a
foreclosure sale buys under the doctrine of caveat emptor . . .
and the purchaser is required to take notice of everything in
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the recorded chain of title.” 558 S.W.2d at 275. In discussing
caveat emptor, the U.S. Supreme Court has stated:
The doctrine [of caveat emptor], substantially as we
have stated it, is laid down in numerous adjudications.
Where the means of information are at hand and equally
open to both parties, and no concealment is made or
attempted, the language of the cases is, that the misrep-
resentation furnishes no ground for a court of equity to
refuse to enforce the contract of the parties. The neglect
of the purchaser to avail himself, in all such cases, of
the means of information, whether attributable to his
indolence or credulity, takes from him all just claim
for relief.
Slaughter’s Administrator v. Gerson, 80 U.S. (13 Wall.)
379, 385, 20 L. Ed. 627 (1871). In accordance with these
other jurisdictions and authorities noted above, just as we
have applied the doctrine of caveat emptor in judicial sales,
we now hold that the doctrine of caveat emptor applies in
trustee’s sales.
The instant case was tried in equity, and accordingly, we
try factual questions de novo on the record and, as to ques-
tions of both fact and law, we are obligated to reach a con-
clusion independent of the conclusion reached by the trial
court. See RGR Co. v. Lincoln Commission on Human Rights,
292 Neb. 745, 873 N.W.2d 881 (2016). Our de novo review
of the record shows that in March 2010, prior to the date of
the trustee’s sale, the real estate was sold at a public tax sale
to Situs, LLC, for delinquent taxes pursuant to § 77-1801 et
seq. Situs received a certificate of tax sale, which Situs sub-
sequently assigned to Vandelay Investments in February 2013.
After providing notice, Vandelay Investments filed applica-
tions for tax deeds. On July 25, 2013, the county treasurer
issued a tax deed to Vandelay Investments, and the treasurer’s
tax deed was recorded on August 1. A second treasurer’s tax
deed was issued to Vandelay Investments on August 28, and
the second treasurer’s tax deed was recorded on September 9.
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All of this occurred prior to the trustee’s sale, which occurred
on October 2.
[15] In Knosp v. Shafer Properties, 19 Neb. Ct. App. 809, 817,
820 N.W.2d 68, 74 (2012), the Nebraska Court of Appeals held
that “a treasurer’s tax deed, issued pursuant to § 77-1837 and
in compliance with §§ 77-1801 to 77-1863, passes title free
and clear of all previous liens and encumbrances.” The par-
ties in this case stipulated that they “do not dispute the valid-
ity of” the treasurer’s tax deeds that were issued to Vandelay
Investments. Accordingly, pursuant to Knosp, the treasurer’s
tax deeds that were issued to Vandelay Investments passed
title free and clear of all previous liens and encumbrances,
including the trust deed at issue in this case. Therefore, at the
time of the trustee’s sale on October 2, 2013, the trust deed
had been divested of title due to the issuance of the treasurer’s
tax deeds.
As set forth above, the record shows that both treasurer’s tax
deeds issued to Vandelay Investments were recorded prior to
the trustee’s sale. The parties stipulated that neither party had
“received actual knowledge” of the issuance of the treasurer’s
tax deeds; however, the parties further agreed that the treas­
urer’s tax deeds “were matters of public record at the time of
the [t]rustee’s sale of the real estate.” Because the treasurer’s
tax deeds were recorded before the trustee’s sale was held, the
appellees were on record notice of the treasurer’s tax deeds.
See §§ 76-238(1) and 76-1017.
The appellees in this case sought relief from entering into a
deal with an unfavorable outcome. The district court focused
on the outcome of the transaction and determined that because
the trust deed had been divested of title, the trustee’s sale
was void, and ordered Oakland to return the purchase price
to the appellees. The district court’s determination does not
comport with the doctrine of caveat emptor, which we have
determined applies in this case. Under the doctrine of caveat
emptor, the purchaser “‘is bound to examine the title’” and if
the purchaser “‘buys without such examination, he does so at
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his peril, and must suffer the loss occasioned by his neglect.’”
Enquist v. Enquist, 146 Neb. 708, 714, 21 N.W.2d 404, 407
(1946), quoting Norton v. Neb. Loan & Trust Co., 35 Neb. 466,
53 N.W. 481 (1892). In this case, had the appellees examined
the title, they would have realized that the treasurer’s tax deeds
had been issued and that the trust deed had been divested of
title. In taking such steps to examine the chain of title, the
appellees would have protected themselves from entering into
an unfortunate deal. We have stated that a purchaser of real
estate is required to take notice of instruments properly placed
of record in the office of the register of deeds. See Ihde v.
Kempkes, 228 Neb. 433, 422 N.W.2d 788 (1988). However,
because the appellees failed to examine title before bidding
at the trustee’s sale, they “‘must suffer the loss occasioned by
[their own inattention].’” Enquist v. Enquist, 146 Neb. at 714,
21 N.W.2d at 407.
We have stated that “[e]quity will not relieve a purchaser
of his own negligence.” Norton v. Neb. Loan & Trust Co.,
35 Neb. at 471, 53 N.W. at 482. See, also, Slaughter’s
Admistrator v. Gerson, 80 U.S. (13 Wall.) 379, 383, 20 L. Ed.
627 (1871) (stating that “[a] court of equity will not under-
take, any more than a court of law, to relieve a party from
the consequences of his own inattention and carelessness”).
Therefore, we determine that the district court erred when it
relieved the appellees of the consequences of their inattention,
determined that the trustee’s sale was void, and ordered that
Oakland return the purchase price to the appellees. We reverse
the decision of the district court and remand the cause with
directions that the district court enter judgment in favor of
Oakland and dismiss the appellees’ complaint.
CONCLUSION
In this case, prior to the trustee’s sale, the treasurer’s
tax deeds were issued to Vandelay Investments. Our law is
clear that a treasurer’s tax deed passes title free and clear
of all previous liens and encumbrances, and accordingly, the
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treasurer’s tax deeds issued to Vandelay Investments divested
the trust deed of title. The treasurer’s tax deeds were recorded
prior to the trustee’s sale, but the appellees failed to examine
the record.
We conclude that the doctrine of caveat emptor applies to
a trustee’s sale, and in this case, the appellees must suffer the
consequence of their own inattention. In this case, the trust
deed had previously been divested of title by issuance of the
treasurer’s tax deeds to Vandelay Investments which tax deeds
were recorded. The appellees purchased the trust deed without
examining the record, but they are nevertheless deemed to be
on record notice. Despite the appellees’ failure, the district
court determined that the trustee’s sale was void and ordered
Oakland to return the purchase price to the appellees. These
rulings were error. We reverse the decision of the district court
and remand the cause with directions that the district court
enter judgment in favor of Oakland and dismiss the appel-
lees’ complaint.
R eversed and remanded with directions.