concurring specially.
I agree to the conclusion reached in the foregoing opinion and concur in a judgment of affirmance. I dissent, however, from the views expressed in the opinion which are in conflict with the principles deducible from the following authorities, which, in my opinion, must now be held to be the settled law of this state: Kruger v. Adams & French Harvester Co., 9 Nebr., 526; Skinner v. Reynick, 10 Nebr., 323; Bond v. Dolby, 17 Nebr., 491; Koch v. Losch, 31 Nebr., 625; Nye v. Fahrenholz, 49 Nebr., 276; Farmers' Loan, & Trust Co. v. Schwenk, 54 Nebr., 657; Arlington-Mill & Elevator Co. v. Yates, 57 Nebr., 286; Goos v. Goos, 57 Nebr., 294; Battelle v. McIntosh, 62 Nebr., 647; Curtis v. Osborne, 63 Nebr., 837.
*152Sedgwick, J.,concurring.
I think that the many former decisions of this court, so far as they bear upon the question involved in this case, can be justified, if at all, only upon the principle that the purchaser of real estate incumbered by a mortgage is estopped to deny the validity of the prior mortgage if he deducts the amount of the mortgage from the purchase price, and agrees to pay the same. Unless there is an agreement, express or implied, to pay the prior lien, he is not estopped to deny its validity. The fact that he purchased the property at a foreclosure sale, under an appraisement in which the prior lien is deducted from the true value of the land in ascertaining the value of the defendant’s interest, is to be regarded as evidence that he assumed the prior mortgage, and agreed to pay the same as part of the purchase price. The record may be in such condition that, together with such appraisement, it will, of itself, be sufficient evidence that the purchaser assumed and agreed to pay the prior incumbrance.
The proposition of law stated in the sixth paragraph of the syllabus is not inconsistent with this view. It is, by its terms, restricted to junior liens held by parties to the action whose rights have been adjudicated therein. If a purchaser at a judicial sale has purchased the property for a small fraction of its real value, and the appraisement under which he purchases shows that a prior lien has been deducted from the real value of the land in fixing the defendant’s interest, the presumption will be that he assumed and agreed to pay the prior lien, there being nothing in the record of the proceedings to overcome this presumption. But when the decree itself shows that the sale was not made subject to a prior lien, but that a supposed lien, erroneously deducted by the appraisers, was in fact subject to the lien under which the sale took place, then no such presumption exists, but rather the record is conclusive that the purchaser did not assume and agree to pay the prior lien.