
    Will G. Nye v. J. Fred Rogers.
    Filed June 9, 1898.
    No. 8145.
    1. Judicial Sales: CERTIFICATE oe Incumbrances: Waiver. As the certificates of incumbrances of real property before judicial sale are for the benefit of plaintiff, he may waive any or all such certificates if he chooses so to do.
    2. •— -: Objections to Confirmation: Evidence. Where the showing by affidavit in resistance of confirmation of a judicial sale was that “the property was divided, assessed, and recognized as distinct, separate, subdivisions, one having no relation to the other,” held,, that, for the purpose of reversing the order of confirmation, this language would not be construed as stating that the lots were, in fact distinct, separate, subdivisions.
    3.-: -: Publication of Notice: Burden of Proof. Where the return of a judicial sale by a sheriff recited that publication had been made in a newspaper printed and in general circulation in the proper county, naming it, it devolved upon the party attacking the validity of the sale to show why there was not sufficient compliance with the provisions of section 497, Code of Civil Procedure, if that is the defect relied upon.
    Error from the district court of Buffalo county. Tried below before Sinclair, J.
    
      Affirmed.
    
    
      Robert A. Moore, for plaintiff in. error.
    
      Warren Pratt and E. G. Galkins, contra.
    
   Ryan, C.

This proceeding in error is for the review of the order of the district court of Buffalo county overruling certain objections to the confirmation of a sheriff’s sale upon the foreclosure of a mortgage.

The first objection urged was that one of the appraisers was deputy sheriff of the aforesaid county and therefore was disqualified. Whether the effect claimed would of necessity result from this alleged disqualification we need not determine, for there was evidence that neither appraiser was a deputy sheriff, and a ruling of the district court on a disputed fact made on conflicting evidence will not be disturbed in this court.

It was next objected that there was no showing that the newspaper in which publication of the notice of sale was made had a bona fide circulation of 200 copies weekly and had been published for fifty-two successive weeks prior to such publication. The return of the sheriff showed that the newspaper was one printed and in general circulation in Buffalo county, and this is in strict compliance with section 497, Code of Civil Procedure. The sheriff was not required to state the facts upon which his return as to the status of the newspaper in question was founded.

It was next objected that no application for a statement of liens was addressed to the city or town treasurer of the city of’ Kearney. It has been held by this court that the certificate of liens may be entirely waived by the plaintiff, as this certificate is for his sole benefit. (Craig v. Stevenson, 15 Neb. 362; Smith v. Foxworthy, 39 Neb. 214; American Investment Co. v. McGregor, 48 Neb. 779.) From this proposition it results that the certificate of any county officer as to what liens are disclosed by the records of his office may be waived by the plaintiff. In the affidavit of R. A. Moore it was stated: “The property described as lots 1, 2, and 3, in block 13, in the decree above, was divided, assessed, and recognized as distinct, separate, subdivisions, one having no relation to the other,” and it is insisted that as there was no contradiction of this statement it must be accepted as true, and therefore that the rule laid' down in Runge v. Brown, 29 Neb. 116, that separate tracts or parcels must be appraised separately, must prevail. But it was not stated that the lots were not contiguous; on the contrary, the reference was to the property as a whole, and the fair inference from the language used is that said property was merely subdivided into lots. In view of the fact that the district court seems to have so construed the affidavit, we do not feel justified in giving the language of Mr. Moore a strained or unnatural construction to justify a reversal. The above review covers all the points argued and the order of the district court is

Affirmed.  