DocketNumber: No. 29334
Citation Numbers: 128 Neb. 256
Judges: Carter, Chappell, Day, Eberly, Goss, Paine
Filed Date: 1/25/1935
Status: Precedential
Modified Date: 9/9/2022
This is an appeal from an order confirming a judicial sale.
Plaintiff foreclosed a first mortgage upon two different tracts of land. All parties having liens and otherwise interested were made parties. The decree gave plaintiff a lien for $12,776.35 upon the two tracts, the first of which consisted of 80 acres, the second of 93.45 acres. The decree gave Jay C. Moore a second lien upon the larger tract. It also decreed several judgment liens to other defendants, but it is unnecessary to recite them here.
The decree directed that the sheriff sell as upon execu
While the decree did not specifically order the land to be offered as a unit after the tracts had been offered separately, the evidence indicates that, when the. trial court made up his minutes for the decree, this omission was noticed by plaintiff’s attorney, and the court was requested to insert the provision and announced that his minutes and record would be changed to comply with the request. At the time for confirmation a motion by plaintiff asked that a nunc pro tunc order be made to cover this point in the decree. In the order confirming the sale this motion for the order nunc pro tunc was refused “for the reason that the decree as now entered is in effect the same as requested and for the further reason that the entry of the requested change would not affect the rights of any of the parties.” This last reason probably goes to the question of estoppel of plaintiff by reason
Plaintiff’s attorney interpreted the decree and order of sale as did the court, but the sheriff interpreted the order of sale to require him, not only to offer for sale, but actually to sell the smaller tract before he sold the other. This is shown in the bill of exceptions by affidavit of J. D. Cranny, attorney for plaintiff. The sheriff made affidavit, which is also in the bill of exceptions, and he does not deny this positive statement of fact. We think the fundamentals of a fair sale did not obtain, that plaintiff was taken by surprise, was in effect coerced by the sheriff, and so made an improvident bid on the 80-acre tract, from which it should be relieved.
The judgment of the district court is reversed, with instructions to provide for a sale of the two tracts of land so that plaintiff may make a lump sum bid upon all the land without being required to make a bid upon either tract separately. This is to be understood as not interfering with the offering for sale of the tracts separately, but it is not to compel plaintiff so to bid.
Reversed.