Green v. State Bank. ERROR to the district court for Washington county. Tried below before SAVAGE, J. The facts appear in the opinion. J. M. Woolworth, for defendant in error. 1. The court, in the exercise of its discretion, could have confirmed the sale, or set it aside. Rorer on Judicial Sales, § 108, and cases cited. 2. But it could not make a contract for the parties other and different from that made when the bid was accepted. This it attempted to do, and the order is therefore erroneous. Rorer, § 108, and cases cited. George E. Pritchett, for defendant in error. 1. The confirmation of judicial sales is a matter of discretion to be exercised by the court. The matter of confirmation rests peculiarly upon the wise discretion of the court. Rorer on Judicial Sales, §§ 124 and 128. 2. Error will not lie upon what is matter of discretion in a court. Chaffel v. Soldan, 5 Mich., 242. Jenkins v. Brown, 21 Wend., 454. Mo., 667. MAXWELL, CH. J. Walton v. Walton, 19 In the case at bar there was a decree of foreclosure and sale of the mortgaged premises. The plaintiff in error (defendant below) filed exceptions to the sale, and moved to set the same aside. The exceptions were overruled and the sale confirmed, to which the plaintiff in error excepted. That portion of the order of confirmation is as follows: "The motion of the plaintiff to confirm the sale made herein coming on to be heard, together with the objections of the defendant Green v. State Bank. thereto, after hearing counsel for the respective parties and being fully advised in the premises, it is ordered by the court here that the said objections be overruled, and that said sale be in all things confirmed, upon the plaintiff stipulating to convey the property purchased by it at said sale to the defendant, John H. Green, upon receipt of $2,000 within sixty days from this date; and the plaintiff now in open court, having offered to comply with said condition, and having filed its written stipulation to that effect, it is ordered that the sale heretofore made by the sheriff of Washington county herein be in all things confirmed," etc. Has the court authority to confirm a sale conditionally in this manner? The court must either confirm or set aside a sale; it cannot modify it, or impose conditions. In the Ohio Life Ins. Co. v. Goodin, 10 Ohio State, 557, the appraisers described a lot as containing thirty feet front, and appraised the value thereof with the improvements at $260 per front foot. After the sale and confirmation thereof it was discovered that the lot was only twenty-seven feet front. The court thereupon entered a supplemental decree, requiring the creditor to refund the amount paid by mistake. It was held that the court could not modify the terms of the sale. To the same effect see Benz v. Hines, 3 Kan., 390. Kinnear v. Lee, 28 Md., 488. Davis v. Stewart, 4 Tex., 223. In Paulett v. Peabody, 3 Neb., 196, the court say: "A very large discretion is necessarily given to the district court in the supervision of sales of real estate under its judgment and decrees. The statute points out very clearly certain steps which must be taken by the officer charged with the duty of making the sale, not one of which can be omitted, and in respect to which the court is given no discretion. But this enumeration of duties on the part of the sheriff is not to be consid Green v. State Bank. ered a limitation or restriction upon the authority of the court to see to it that in all other respects the proceedings are properly conducted, and the sale fairly made, so that neither the parties to the suit nor the purchaser at the sale shall be defrauded." The rules thus laid down have been steadily adhered to in this court. Among the nine grounds of objection to the confirmation of the sale in this case we find this: "For the reason that the appraisement of said real estate is greatly, unreasonably, and unjustly below the real value thereof, and shows collusion on the part of said officers and appraisers." The affidavits in support of the objections were stricken from the files on motion of the defendant in error, so that we are unable to determine whether this specific ground of objection is sustained or not; but from the fact that the court gave the debtor the right to repurchase within a certain time, it is reasonable to infer that but for this condition the sale would have been set aside. It is the duty of the court to see that the sale has been fairly made in all respects, and to protect the rights of the debtor, creditor, and purchaser; but a proposition to an embarrassed debtor to redeem the property described in the order of confirmation against his objection, in most instances, would be entirely unavailing, from the inability of the debtor to comply with its conditions, while it might be used as a pretext for depriving him of his property at a merely nominal sum. As the district court had no authority to impose the conditions referred to in the order of confirmation, the judgment is reversed, and the cause remanded for further proceedings. REVERSED And remanded. Young v. Morgan. ELLEN YOUNG, PLAINTIFF IN ERROR, V. MORGAN & Promissory Notes: ACTION ON FORGED NOTE: DEFENSE. Y., in 1876, signed a note with C. as surety in favor of M. and G., ERROR to the district court for Platte county. The action there was brought by plaintiff, Young, to restrain the sale of certain real estate, alleged to be her sole and separate property, which had been levied on by the sheriff of said county by virtue of an execution issued under a judgment recovered by Morgan & Gallagher against one Compton and said plaintiff. The defendants demurred to the petition, which was sustained by POST, J., and a judgment entered against the plaintiff for costs, and dismissing the action. Marlow & Munger, for plaintiff in error. NOTE.-A court of equity will grant relief against judgments obtained by fraud, surprise, or mistake, or when from any cause manifest injustice has been done. But it must appear that the party seeking the new trial has not been negligent and that he has a defense to the action. Horn v. Queen, 4 Neb., 108. S. C., 5 Neb., 472. In an original action in equity to vacate a judgment or decree, if the ground of complaint is not the result of fraud on the part of the plaintiff, or some circumstance beyond the control of the defendant, but is occasioned by the fault, negligence, or want of ordinary diligence on the part of the defendant, he will not be permitted to deny the correctness of the judgment or decree or renew the controversy. Pope v. Hooper, 6 Neb., 178.-REP. Young v. Morgan. The facts alleged in the petition, and admitted to be true, clearly prove it to be against conscience to enforce the payment of the judgment. If this be true the plaintiff is entitled to the relief asked, notwithstanding she failed to defend before judgment. The Marine Insurance Co. of Alexandria v. Hodgson, 2 Cranch, U. S., 557. To entitle the plaintiff to be relieved from the payment of the judgment in question, she must have a defense upon the merits. It is admitted that the notes in question are forgeries, never having been signed by her, or by any one authorized to sign the same for her. It is further admitted that she did not owe Morgan & Gallagher the amount of said notes, or any other amount whatever, and never had any dealings with them in any way whatever. Her defense is complete; no recovery can be had against her on the notes. Now we claim that the plaintiff is entitled to the relief asked without showing any excuse for not making her defense, after service of the summons, and before judgment was entered against her in the county court; the notes in question being forgeries, Morgan & Gallagher did not have a cause of action against her. It would be different if she had signed the notes, and they had been paid, and retained by them, or if she had paid a part of the amount due, but in this case there was nothing due, and never had been from her to them on the notes. In fact she did not owe them a farthing. She had the right to remain away, knowing that she did not owe them a penny. If the presumption was that Morgan & Gallagher would perjure themselves in order to obtain a judgment against her, or that her name would be forged to notes, then the rule would be different. The presumption is the other way, that they would not perjure themselves in order to obtain a judgment against her, and that her name would not be |