Norton v. Neb. Loan & Trust Co. misrepresentation is admitted, and the court answers the purchaser, in effect: "You had no right to rely upon the representations of the commissioner appointed by the court to conduct the sale, and, although you were the sole bidder and there was an incumbrance of $3,000 on the land of which you had no notice, and was in excess of the amount of your bid, yet the land is cheap enough and the court will not relieve you." In regard to the objection that the purchaser could have examined the title for himself, the answer is that there was no time to make an investigation of the title. The sheriff had offered, and was then offering, the property for sale. There were no bidders. Norton came up and inquired in regard to the sale and the title that would be acquired. The officer professed to know, and informed the party that he would obtain a clear title. The bidder certainly could rely upon this statement. Had the officer said, "I have no knowledge in regard to the matter, you must examine the records for yourself," then the purchaser would have bid at his peril, and the doctrine of caveat emptor would have applied. *Considerable stress is laid upon the doctrine of caveat emptor, and it is said the purchaser must beware. The doctrine does not apply where a party has been induced to bid by a misstatement of facts made by the officer who conducted the sale; and I think not a single case can be found where a sale was made under a decree of a court of equity by an officer appointed by the court where such misrepresentations have not been held good cause for setting the sale aside. The decision in this case practically overrules Paulett v. Peabody, 3 Neb., 196; and Frasher v. Ingham, 4 Neb., 531, and, I believe, does great injustice to the purchaser, and places the court in the attitude of approving deception in its officers in conducting sales under its direction. Second-It is admitted, by not being denied, that "on Norton v. Neb. Loan & Trust Co. the 15th day of September, 1889, he (Norton) met the sheriff, whereupon said sheriff stated to the affiant that the said amount bid by this affiant, to-wit, $2,535, was not two-thirds of the appraised value; * that the land had been appraised at $4,800, and could not be sold for less than $3,200, and unless Norton would raise his bid to $3,200, the sale would be declared off," etc. That is, that Norton's bid was not sufficient to authorize the sheriff to entertain it, and therefore, unless Norton would raise the bid to $3,200, he would make a report of no sale. Norton informed him that he would not raise his bid, and the sheriff in effect declared it off. It is probable that this was part of the scheme to defraud Norton, by putting him off his guard, and preventing an investigation of the title before the sale was confirmed, because the sheriff, without further notice to Norton, made a report of the sale and it was thereupon confirmed, without notice to Norton, and in his absence. So far as the sheriff is concerned, his conduct is wholly indefensible, and can only be accounted for upon the theory of a scheme to defraud Norton, in which, probably, he was not alone. I do not care to comment on this feature of the case, as it presents the officer in a very unenviable light. As I understand the law, a court of equity, in making a sale of real estate under a decree of foreclosure, takes the place of the vender, and the person making the sale is the agent of the court, and it is the duty of the court to see that the sale was fairly conducted in all respects, and that it will not sanction misrepresentations in its agent as to the title of the property, or incumbrances, to induce persons to bid. In other words, misrepresentations which, if made by the land owner himself to a purchaser, would be good ground to set a sale aside, are equally so when made by the person appointed by the court to conduct a sale under a decree; and experience has shown that the establishment of this rule has induced competition in bidding Phillips v. Bishop. at such sales. (McGown v. Wilkins, 1 Paige Ch. [N. Y.], 120; Morris v. Mowatt, 2 Id., 586; Veeder v. Fonda, 3 Id., 94; Seaman v. Hicks, 8 Id., 656; Kauffman v. Walker, 9 Md., 229; Tooley v. Kane, 1 S. & M. Ch. [Miss.], 518.) Third-I do not understand that the rule of caveat emptor applies where another element intervenes, viz., false representations. It seems to me that great injustice is done to the plaintiff in error, and a rule is established that is liable to be fraught with gross injustice, not only to purchasers at judicial sales, but to the owners of the equity of redemption as well. In my view, the sale should be set aside. 35 487 36 601 35 487 SIMEON PHILLIPS V. ISAAC C. BISHOP ET AL., APPEL- [FILED OCTOBER 26, 1892.] CER 1. Conveyance of Homestead: ACKNOWLEDGMENTS: TIFICATE OF NOTARY: IMPEACHMENT. A certificate of acknowledgment of a deed or mortgage, in proper form, can be impeached only by clear, convincing, and satisfactory proof that the certificate is false and fraudulent. 2. Evidence in this case considered, and held insufficient to overcome the officer's certificate and the evidence in favor of the execution and acknowledgment of the instrument. REHEARING of case reported in 31 Neb., 853. Paul & Templin, and O. A. Abbott, for appellant. Thompson Bros., and T. T. Bell, contra. NORVAL, J. This is a rehearing of the case reported in 31 Nebraska, at page 853. The action was brought in the court below 48 527 35 487 49 241 35 487 a59 93 Phillips v. Bishop. by Simeon Phillips to foreclose a mortgage given by Isaac C. Bishop and Ida Bishop, his wife. To the action, N. J. Paul was made a defendant, who filed an answer and crosspetition, praying the foreclosure of a mortgage given by the Bishops, upon the same real estate described in plaintiff's petition, to one A. G. Kendall, and by him transferred to Paul. To the cross-petition Isaac C. Bishop filed an answer, setting up that one tract of the real estate in controversy was a homestead of less value than $2,000 over and above incumbrances thereon; that the mortgage given to Kendall was never acknowledged by his wife, and was therefore void. He also pleaded usury and payment. The defendant Ida Bishop answered the cross petition, alleging that the mortgage included the homestead of herself and husband, and denies that she ever acknowledged the mortgage in question, or that she ever signed the same in the presence of the notary public who certified to the acknowledgment, or any other person, or that she ever received any consideration for so doing. To these answers a reply was filed by Paul. Upon the trial the district court held that the mortgage described in Paul's cross-petition was void as to one of the pieces of property therein described, on the ground that the same was a homestead of a value not to exceed $2,000, and that the wife did not acknowledge the execution of the mortgage. On the former hearing the decision of the trial court was affirmed by this court. It is perfectly clear that, under the homestead law of this state, a mortgage on the homestead of a married person is void unless the same is executed and acknowledged by both husband and wife. This has been the uniform holding of this court, and a citation of the decisions is unnecessary. It is strenuously urged by appellees that Ida Bishop did not acknowledge the mortgage in controversy. If the proofs establish the proposition to that de Phillips v. Bishop. gree of certainty required to impeach the certificate of the officer certifying to the acknowledgment, then our former decision was right and must stand; otherwise not. That the mortgage was executed and acknowledged by Isaac C. Bishop before W. L. Thompson, a notary public in and for Howard county, is undisputed. Mrs. Bishop admitted, when upon the witness stand, that she voluntarily signed the mortgage, but claims she did so at her home, and not before the officer. Mr. Thompson, the notary, certifies that she, as well as her husband, acknowledged the instrument before him in the manner provided by the statute. The certificate of the officer being in proper form, although not conclusive of the fact of acknowledgment, is strong and convincing evidence that the wife acknowledged the mortgage. The certificate, of course, can be impeached by proof of fraud or duress, but the evidence must be clear and satisfactory. As a general rule, the unsupported testimony of the party purporting to have made the acknowledgment is insufficient to overcome the officer's certificate. Where, as in this case, the execution of the instrument is admitted, in order to sustain such a defense, the proof must be clear and convincing. (Insurance Co. v. Nelson, 103 U. S., 544; Russell v. Baptist Theo. Union, 73 Ill., 337; Marston v. Brittenham, 76 Ill., 614; Crane v. Crane, 81 Ill., 165; McPherson v. Sanborn, 88 Id., 150; Blackman v. Hawks, 89 Id., 512; Heeter v. Glasgow, 79 Pa. St., 79; Fitzgerald v. Fitzgerald, 12 Reporter, 720; Gabbey v. Forgeus, 15 Pac. Rep. [Ks.], 866; Bailey v. Landingham, 53 Ia., 722; Smith v. Allis, 52 Wis., 337; Johnson v. Van Velsor, 43 Mich., 208.) Applying the rule above stated to the case at bar, is the evidence sufficient to sustain the defense made by the answer? The evidence is very conflicting. In support of the officer's certificate there is in the record the direct and positive testimony of A. G. Kendall and C. H. Paul, that Mrs. Bishop did execute and acknowledge the mortgage in their |