Norton v. Neb. Loan & Trust Co.

chasing. No claim is made that either the plaintiff in foreclosure, or Taylor, or his wife, was guilty of any fraud, or that any representations were made by either of them to Norton, as to the character of the title to the land, or that they had any knowledge at the time of the purchase of the statements and representations made by the clerk and sheriff. The only proposition presented is whether the fact of the sheriff and clerk having represented to Norton that, if he would buy the land, he would get a clear and perfect title thereto, free from liens, although such representations were untrue, was sufficient to require the court to set aside the sale. In our view, under the facts disclosed by this record, and the law applicable thereto, plaintiff in error is not entitled to any relief. Ordinarily a purchaser at sheriff's sale takes all risks. He buys at his peril, and if the title is bad, he must stand the loss. The rule of caveat emptor applies in all its force to all judicial sales. The court undertakes to sell the title of the defendant, such as it is, and it is the duty of the purchaser to ascertain for himself the character of the title he is about to acquire. (Miller v. Finn, 1 Neb., 254; Smith v. Painter, 5 S. & R., 225; Vattier v. Lytle's Exrs., 6 O., 478; Lewark v. Carter, 117 Ind., 206; Corwin v. Benham, 2 O. St., 36; Mason v. Wait, 4 Scam. [Ill.], 127; Bishop v. O' Conner, 69 Ill., 431; Sackett v. Twining, 57 Amer. Dec., 599; Lynch v. Baxter, 4 Tex., 431.)

An exception to the rule above stated, recognized by the weight of authorities, is where the purchaser has been induced to bid by fraud, or under a mistake of fact. A purchaser will be released from the sale on the ground of a mistake of fact, when the mistake is not the result of his own negligence, if application therefor is made at the proper time; but he will not be released from his purchase on his mere ignorance or mistake of law. (Haden v. Ware, 15 Ala., 149; Burns v. Hamilton, 33 Id., 210; Hayes v. Stiger, 29 N. J. Eq., 196; Upham v. Hamill, 11 R. I.,

Norton v. Neb. Loan & Trust Co.

565.) The facts do not bring the case at bar within the exception to the rule, so as to entitle Norton to have the sale set aside. Neither the clerk nor sheriff misrepresented any material fact concerning the condition of the title. They did not inform the purchaser that there were no incumbrances upon the property, nor does Norton claim that he was not aware of there being a prior mortgage of $3,000 on the premises at the time he made his bid. The clerk and sheriff supposed that the sale would extinguish all incumbrances and that the purchaser would acquire a perfect title to the property. In so informing Norton, they misstated the law, or the legal effect of the foreclosure proceedings and sale, and for which the law affords no relief.

We think plaintiff in error is concluded by his own neglect. He had no right to rely upon the statements of the clerk and sheriff, but should have had the title and the proceedings under which the sale was made examined for himself, before he made his bid. Had he done so, he would have been fully apprised of the condition of the title. The records of the county and of the court are open to inspection to every one, and these records disclose the objection now urged to the title of the lands. Had an examination been made of either the petition to foreclose the mortgage, the decree, the appraisement, certificate of liens, or notice of sale, he would have ascertained that Washington Quinlin had a first lien upon the premises for $3,000 and interest, and that the sale was to be made subject thereto. If Norton was deceived, it was the result of his own negligence in not taking the precaution to examine the records. He is chargeable with knowledge of their contents. Equity will not relieve a purchaser of his own negligence. (Roberts v. Hughes, 81 Ill., 130; Vanscoyoc v. Kimler, 77 Ill., 151; Riggs v. Pursell, 66 N. Y., 193; White v. Seaver, 25 Barb., 235; Eccles v. Timmons, 95 N. C., 540; Weber v. Herrick, 26 N. E. Rep. [Ill.], 360; Dennerlein v. Dennerlein, 19 N. E. Rep. [N. Y.], 85.)

Norton v. Neb. Loan & Trust Co.

In Eccles v. Timmons, supra, it is held that a purchaser at a judicial sale will not be released from his bid on the ground that the title is imperfect, when the true state of the title is set out in the pleadings under which the sale was made.

Dennerlein v. Dennerlein, 19 N. E. Rep., 85, was a partition sale. The property was described in the proceedings and in the notice of sale by metes and bounds and as "containing 31 acres, be the same more or less." Prior to the sale, hand-bills were issued in the name of the referee who made the sale, in which the boundary lines of the premises were omitted, and the property was described as "the farm of the late John Dennerlein, containing 31 acres." The purchaser, in bidding upon the property, relied upon the statement in the hand-bills as to the quantity of land, Subsequently he discovered that the premises only contained 24 acres, and applied to the court for an order releasing him from completing the purchase on the ground that he had been misled as to the number of acres, which motion was denied. He appealed to the general term, where the order was affirmed, and, on appeal to the court of appeals of New York, it was held that he was not entitled to relief.

Vanscoyoc v. Kimler, supra, was an appeal from an order of the circuit court, sustaining a motion made there. in by the purchaser, to set aside a sale of a tract of land made upon execution, on the ground that he was led to believe, by misrepresentations made by the officer conducting the sale, that the land was not incumbered, when in fact it was mortgaged in excess of its value. The su preme court held that the maxim of caveat emptor applied, and that the misrepresentation of the sheriff afforded no ground for setting aside the sale.

In the case at bar the price paid was so greatly inade quate to the real value of the land as to put the purchaser on inquiry. He should have known that a half section of

Norton v. Neb. Loan & Trust Co.

land, which the evidence shows was well worth $6,400, would sell for more than $2,535, the amount of his bid, if there was no prior incumbrance. The land was actually worth several hundred dollars more than the amount bid by Norton and the Quinlin lien combined, so that, instead of losing anything by the transaction, the investment is still a profitable one. He does not complain that he has lost anything by the transaction, but rather that he failed to double on the investment.

Concerning what took place between the sheriff and Norton the day following the sale, to which reference has been made, we will say that it is unexplainable how the former made the statements he did, if correctly quoted in Mr. Norton's affidavit, in regard to what the land was appraised at. It is not true that it had been appraised at $4,800, and could not be sold for less than $3,200. The sum bid by Norton was more than two-thirds the appraised value of the land, as shown by the appraisement. However, what the sheriff may have said in that regard, as well as the statement that "the sale must be declared off," is of no importance, for the reason that the status of Norton, as purchaser, was fixed when his bid was accepted; the officer had no power or authority to afterwards release him from his purchase.

It is contended that this case falls within, and is controlled by, that of Paulett v. Peabody, 3 Neb., 196, and Frasher v. Ingham, 4 Id., 531. We do not think so. These cases were decided upon facts materially different from this. In the first case there was a decree of foreclosure of a junior mortgage, in a suit wherein the senior mortgagee was not a party. The property was sold under the decree by the sheriff, the purchaser being induced to buy the property through the false representations of the attorneys of both the plaintiff and the senior mortgagee, that the junior mortgage would be paid off out of the proceeds of the sale, and that he would take the property dis

Norton v. Neb. Loan & Trust Co.

charged of such lien. It was held that said false representations of the parties were sufficient grounds for vacating the sale. In the case we are considering it is not pretended that any misrepresentations or fraud can be imputed to any of the parties to the suit, or to Quinlin, the senior mortgagee, whereby Norton was induced to buy the land. Of course, when a fraud is practiced upon the purchaser at a judicial sale by the party in interest, which induced the purchaser to make his bid, the sale will be set aside therefor. But the rule has no application here.

In the case reported in 4th Nebraska the sheriff levied an execution upon, appraised, and sold, a tract of land covered with timber. The sale was duly confirmed and a deed executed to the purchaser. Afterwards it was discovered that the record of the proceedings under the writ described another tract near by, which was of no value whatever. It was held, on a petition of the purchaser to set aside the sale, that he was entitled to relief. Clearly the case is not analogous to the one before us, for in this case there was no error in describing the lands, as in the case cited. The doctrine announced in these decisions should not be extended to cases not clearly of their class.

We are of the opinion that the district court did not err in overruling the motion of the plaintiff in error to set the sale aside, and its decision is

POST, J., did not sit.

MAXWELL, CH. J., dissenting.

AFFIRMED.

I am unable to give my assent to the opinion of the majority of the court, and will, as briefly as possible, state my reasons for failing to concur with the majority.

This is an application to compel the purchaser of land under a decree of foreclosure of a mortgage to complete the purchase by paying the amount of his bid.

He answers, in effect, that he was induced to bid by the