Anderson v. Walsh

192 N.W. 328, 109 Neb. 759, 1923 Neb. LEXIS 40

• Court: Nebraska Supreme Court
• Decided: February 27, 1923
• Docket: No. 22269
• Status: Published

Opinion

Good, J.

Plaintiff has appealed from a decree dismissing her application for a 'deficiency judgment, after a judicial sale and confirmation thereof in a foreclosure action.

Plaintiff brought action against James L. Walsh, his wife, Mary E., Prank M. Gross, and his wife, Bessie A., to foreclose two mortgages which had been executed by Walsh and wife. After the execution of the mortgages, Walsh and wife conveyed the mortgaged premises by .warranty deed to Frank hi-. Gross.. Plaintiff in her petition alleged that; in, the warranty deed, as a pare of the consideration for the land, Frank M. and Bessie A. Gross assui'néd find agreed to pay the debts secured* by the mortgages. ' In ' the prayer of her petition plaintiff asked that all of the defendants be adjudged .to pay any deficiency which_ might remain after, applying proceeds of sale to the payment .of .the .debts, secured:,,by the mortgages. Summons was personally’served on-all-of the defendants, but none of them made appearance in the original action. Default decree was entered in favor of the plaintiff, ■ which, -among other things', contained a finding that Walsh' and wife 'conveyed 'the Ihnds to .Frank 3VI. and Bessie A. Gross, subject’ to the said .mortgages which they assumed and agreed to pay, as alleged. The decree.further provided: “And in case said premises do not sell for sufficient to pay the debts and costs, a deficiency judgment .be given for the amounts.” Thereafter an order of sale was issued and the premises were sold by the sheriff to the plaintiff for the sum of $750, and, after applying the proceeds of-the salé'to the'payment of costs'arid amount found due, there remained a deficiency of $i;097.06. Plaintiff filed motion for confirmation of sale and for deficiency judgment. When this motion was called up in court, counsel for defendant Gross stated "that lié had no objection to .the, confirmation of sale, .provided.no deficiency judgment was asked. The. court . then entered an order confirming the sale, and gave defendants time to make objections to the application for a deficiency judgment-The defendants' Gross 'and 'Wife filed óbjéct'ioüs, in which they alleged that, after'the salé and before confirmation thereof, they' had entered into an' agreement With the plaintiff by thé terms of which they agreed not to make objection to the. confirmation of salé, upon the condition and agreement’of the' plaintiff that she would not ask for á deficiency judgment in the base, arid,’ relying 'on said .agreement, did' riot filé objectidiis to 'a confirmation, though the- premises' ' sol'd for 'an inadequate price. Plaintiff filed- reply, in which she admitted- -the purchase of the land at judicial ■ Salé and that an- agreement had been entered into, but that the terms of the’-oral- agree- ' ment were entirely different 'from those- contended "for by the defendants Gross, and alleged that the-right of plaintiff to a deficiency judgment had been' adjudicated in - the original decree, and" that the order confirming the sale' without objection estopped the defendants from claiming any defense to the motion, and ‘prayer lor deficiency judgment.

On a trial -of the issues thus presented, - the district court found . that, subsequent to the sheriff’s sale,' an agreement' whs entered into between plaintiff and 'defendants, to the effect that defendants would refrain from filing any objections to the confirmation of said sale in consideration - of plaintiff waiving and relinquishing her right to ask for a deficiency judgment in said case against defendants; that ■ defendants belied - on ■ said agreement and did not file objections' to- ■ confirmation of sale; that plaintiff purchased the land at' sheriff’s, sale for $750, and that the land was at'the time reasonably worth $1,600. The court sustained the objections and denied plaintiff a deficiency judgment. ”

1. The first legal proposition' advanced- by- plaihtiff for a reversal is that the decree ■ in the foreclosure case' is a final determination; that all of'the defendants arh liable for any deficiency remaining' after "applying the proceeds of the land on the amount found due'to plaintiff in that decree, and that it is not subject' to review on objections to a deficiency judgment. ' She .cites, in support of her contention, Parratt v. Hartsuff, 75 Neb. 706; Patrick v. National Bank of Commerce, 63 Neb. 200; Devries v. Squire, 55 Neb. 438; Stover v. Tompkins, 34 Neb. 465; Dodge v. Healey, 103 Neb. 180.

We think none of the cases cited goes further' than to hold* that: “Where, in a petition filed to obtain’the foreclosure of a mortgage, facts are alleged' showing a personal liability on the part of the defendants for the payment of the debt, and judgment for deficiency is asked against them, and where the court, in its decree, finds that they are personally liable for the payment of any deficiency that may exist after a sale of the mortgaged premises, they cannot, while such decree remains in force and unmodified, be permitted, when judgment for deficiency is sought, to set up facts which existed when the original decree was obtained, to show that they are not'liable.” Patrick v. National Bank of Commerce. supra.

In the instant case, the matters that are set up to defeat a deficiency judgment are not matters that existed at the time of the entry of, the decree, but arose by virtue of an agreement that was made after the sale and before confirmation. Findings of facts in a decree of foreclosure, showing defendants personally liable for any deficiency, relate only to the facts then existing, and do not operate to preclude defendants from setting up, as a defense, facts arising after entry of decree.

2. It is claimed that the order confirming the sale was a final determination that the land sold for a fair price, and that inadequacy of price could not be raised as an objection to a deficiency judgment. The proposition may be conceded to be sound* but it does not follow that inadequacy of price would not have been a good ground for objecting to confirmation of sale, or that it. would not afford a good basis for a contract between the parties by which' one waived the right to make valid objection to a confirmation, in consideration of the other party relinquishing the right to apply for a deficiency judgment.

3. It is urged that the agreement, being in parol and being made on behalf of plaintiff by her attorney, is in conflict with section 266, Comp. St. 1922, and not enforceable. Said section, so far as applicable, provides: ■“An attorney or a counselor has power * * * to bind his client by his agreement in respect to any proceeding within the scope of his proper duties and powers; but no evidence of any such agreement is receivable, except the statement of the attorney himself, his written agreement signed and filed with the clerk, or an entry thereof upon the records of the court.” It will be observed that the portion of the statute quoted does not malee an oral contract invalid, but only relates to the character of evidence by which it may be established. All the evidence on the question was received in the district court without objection, and the attorney for plaintiff also testified concerning it, though his testimony did not coincide with that produced ■ for defendants. Had plaintiff made timely objection, the evidence might have been excluded, but, in failing to object, she waived her right to have the contract established by only such evidence as the statute makes competent.

It is incumbent on one, not wishing to be bound by evidence made incompetent by statute, to make timely objection when it is offered. It Is too late to raise the objection for the first time in the appellate court.

Plaintiff insists that in any event she was entitled to have judgment entered against James L. and Mary E. Walsh, because they made no objections to the application for a deficiency judgment and were not parties to the agreement between her and Gross. It will be observed that the agreement with Gross was not to relinquish her right as against the Grosses alone, but generally to relinquish her right to a deficiency judgment. The effect of the agreement was that plaintiff should take the land in satisfaction of her decree. The district court did not err in denying plaintiff a deficiency-judgment as against any of the defendants.

Affirmed.