Omaha daily bee., 1895-05-06

facts as the recoid Gi cl se'. Norton against
! Nebraska Loan and Trust company. IS Neb.
| 100 followed and realirmed.
! 4. An officer selling property under cXccu-
uoh or decree in equity can sell property
provided by the decree and the law in force
| governing such sale, which is Incorporated
into and q part q such decree.
or under a decree in equity has no author
! ny to sell on credit or to accept in payment
money, unless otherwise Expressly author
! lied by the terms of the decree or the law
! in force governing such sale
6; An officer who makes return to an
order of sale, issued for the satisfaction Of
q decree in mortgage foreclosure proceed
| ing, that he sold the property described IN
! such return to designated bidder, Is con
! clusiveiy presumed to have made such sale
! claim, If any, existing against said prop
erty, and to satisfy which such sale was
! made; unless the decree on which said order
| of sale Is based expressly authorizes a
! sale on credit.
sale, who, after its confirmation, accepts
| conveyance for said property executed in
| pursuance of such sale its confirmation nnd
and obtains from the court an order for a
writ of possession FOR such property, thereby
valves all errors and irregularities which
occurred in the making of such sale. and all
! objections and exceptions to the courts
! order Of confirmation.
s. The finding of a district court made on
| conflicting evidence like the finding of a
jury, is binding. on this court, If such find
|
| 9. Certain real estate was incumbered by
| two mortgages. The holder of the second
| mortgage brought suit in equity to fore
| close. obtained decree, and at sale there
| under, purchased tn property. The holder
to the the foreciosur's suit, After S % obtanng his
| decree, but before the sale the holder of
the, second mortgage purchased and took an
| assignment to himself of the first mort
gage. Held: That his ownership of the
| first mortgage did not of itself entitle him
as against, the mortgagor to decree Of
| applying the surplus proceeds Of the sale
toward the liquidation Of the mortgage
10. In a suit to foreclose real estate
! mortgage, certain creditors of the mort
gagor haying ordinary judgments, apparent
| liens on the mortgagsd property were made
| parties defendant; they filed answers, ask
| ing that their judgments might be paid out
! of any surplus arising from the sale of
| the property and remaining after satisfac
| ton of the mortgage being foreClosed, and
gagor though personally served, did not
| appear in the case until after a sale of the
court for an order to have 5000 Of the sur
exemption Held; % That the mSrtgagor
question OF the homestead rights of the
mortgagor was not involved; nor ltigated
in the foreclosure suit. (3) That the decree
rendered in the foreclosure suit was not
! bar to the mortgagor's application to have
the surplus, paid TO him in lieu of his home
stead CD That the judgments .were liens
| upon the real estate before the bringing of
| iect to the mortgagors homestead rights
in the property % That the decree in the
| foreclosure suit finding the judgments were
surplus should be construed as if it read
thai, they were liens and should be paid out
homestead rights. () That the mortgagor
| did not lose his homestead exemption be,
| cause the real estate had been converted
by, a decree of the court into money, nor
| did the judgment creditors acquire by the
decree any greater liens upon or right to the
money than they had against the property.
! CO That the mortgagor might claim the sur
plus money in lieu of his homestead exemp-
| tion at any time before such surplus was
! finally distributed by order Of the court.
Sedgwick against Durham ct al. Error
from York county. Opinion by Commits
The procedure in county courts, in regard
| to bills of exceptions is governed by the
| law relating to justices Of the peace.
| 9 The provisions of section 5S7a of the Code
| of Civil Procedure, authorizing the certifica-
confined to proceedings in the, supreme
| court reviewing judgments of the district
| courts. The original bill of exceptions can
| not be certified from county court to the
| district court.
g. The manner of preserving exceptions
in county courts and before justices Of the
peace is provided by sections 9Ss and loss of
| the code. The exceptions must be entered
| upon the docket of the justice or county
| judge and be presented to the district
court by a transcript Of that docket,
Green against Hall. Appeal from Douglas
| county. Reversed. opinion by Commissioner
An alleged agreement to pay, an existing
| mortgage, as part OF lne consideration TOT
| not established by recitations in the deed
| of conveyance that such deed is subject to
said mortgage nor a mere recitation that
| said mortgage Is part of the consideration
| or purchase price.
g A binding assumption of the payment
| of a mortgage by the grantee in a deed
which merely recites the existence of such
mortgage on the premises conveyed and that
or purchase price, cannot be established by
proof that subsequent to the execution of
such deed the grantee therein named, orally
and without consideration, promised the
mortgagee that he would pay such mort
gage.
g. To entitle the holder of a mortgage to a
deficiency jude ment against the purchaser
of the premises mortgaged, the proofs must
be such as would enable such mortgagee
to maintain against such purchaser an ac-
ton for the amount secured by said mort
Weston against Meyers. Appeal from
Otoe county Affirmed. Opinion by Com
missioner Ragan.
his petition that he was the owner of GER
tain real estate and entitled to the posses
est in said premises by virtue of a tax deed;
that there was no legal and sufficient levy
Of the taxes' for which ,,I SAID a. real & estate
deed, and appelise's TUE BY .yiTta.e, thereof
real estate might be quieted in; and the
pallant. The petition contained no offer to
pay appellee any sum the court might find
he had paid to purchase the premises at the
tax sale or for taxes subsequently paid on
the premises Held; "a That the aVerment
in the petition that "there was no legal
and sufficient levy Of the taxes was a mere
conclusion; (2) That the tax levied became
by virtue of the statute a lien on the real
estate until paid or barred by law; go That
the appellee by his purchase Of the real
estate for such taxes, although the sale was
an invalid one, bscaume thereby subrogated
to the right Of the public, and this right
was a lien upon the real estate for the
taxes paid, until paid or barred; CD That
he who asks equity must do equity; and, as
the appellant did not offer in his petition
to pay the appellee whatever sum the court
mif hit find he had paid out for the purchase
of the premises at the tax sale, nor for
legal taxes subsequently paid on the prem
ises the petition did not state facts emitting
the appellant to equitable relief.
Griggs against Harmon. Appeal from
Saunders county. Affirmed. Opinion by
Commissioner Ryan.
In this case there are presented only ques-
tions of fact which cannot be examined
upon what purports to be a bill of eXecp-
tions signed by the clerk Of the district
court wherein judgment was rendered, for
the reason that there was no showing of
the sickness or absence of the presiding
Judge from his district and because the
parties litgant did not agree upon such bill.
Following Scott against Spencer, 60 n. w,
Rep, S92.
Water. 90 VIII Celebrate.
WATERLOO Neb., May 5.--(Special,)-A