Hammond v. Chamberlain Banking House

Sullivan, J.

This suit was commenced by the appellant to obtain a perpetual injunction against a threatened execution sale of eighty acres of his real estate in Johnson county. The property was originally orvned by George Goracke, for the satisfaction of whose debts it was regularly sold to Hammond by the sheriff, acting under valid orders of sale issued out of the district court in certain actions wherein the Chamberlain Banking House and others were pi aintiffs and Goracke was defendant. Prior to the lien of the judgments on which the orders of sale issued, were a mortgage in favor of the Tecumseh National Bank, a judgment for about $100 in favor of the Chamberlain Banking House recovered in 1893, a judgment in favor of W. B. Compton recovered in 1894, and the taxes due for the last named year. The theory of Hammond is that the land was, with the authority and consent of the Chamberlain Banking House, sold subject only to the lien of the mortgage and taxes. The question for decision is one of fact. There is some conflict in the evidence, but the trial court was undoubtedly right in finding the issues in favor of the defendants. The sheriff announced at the sale that the property would be sold subject to the mortgage and the taxes, but he did not declare that those were the only prior liens. Hammond may have put that construction upon the language used and may have acted on a false assumption in making his bid, but that was his fault; and he certainly cannot allege his own palpable negligence as a ground for relief in an original action. It has been even held that a purchaser at a foreclosure sale could not be released from his bid although it was made under a mistake resulting from an unwarranted overconfidence in representations of the officer making the sale. (Norton v. Nebraska Loan & Trust Co., 35 Neb. 466; same case on rehearing, 40 Neb. 394.) Whatever may be said of the doctrine of the Norton Case, it is entirely clear that in the case at bar there was no circumstance which deterred or forbade the appellant from exercising for his own protection that reasonable caution and vigilance which the rule of caveat emptor exacts of those who purchase property at judicial sales. He should have acquainted himself with the condition of the title in which he was about to invest his money. He should not have relied upon the sheriff’s statement nor on his own inference from the fact stated. That the representative of the Chamberlain Banking House neither authorized nor knew of the special announcement made by the sheriff is pretty conclusively established. It is also proven quite satisfactorily that Hammond’s attorney had actual knowledge of the prior judgment before the order of confirmation was entered. This being so, he should have resisted confirmation and asked to be released from his bid. This was a plain and adequate remedy, and, under the circumstances, it was the only remedy available. The judgment is obviously right and is

Affirmed.