
    B. M. Simms et al. v. Bank of Alma.
    [Filed July 2, 1891.]
    negotiable Instruments: Note eor Property Purchased Under Foreclosure: Sale Vacated. One.S., holding a second lien on mortgaged premises, purchased the property at a sale under the decree of foreclosure and paid the costs of the action, but failed to pay the purchase money. Afterwards, he, with others, executed a note to the bank of A. for the amount of the purchase money for the use of the sheriff and delivered the same to one F., to be held until a motion to set aside the sale should be determined. The motion was overruled and the • sale confirmed, whereupon the sheriff took the note to the bank and obtained the money thereon. The sale was afterwards set aside on a petition thereafter filed. The bank had no interest in the foreclosure proceedings, but simply loaned the money. Meld, That it was entitled to recover.
    
      Error to the district court for Harlan county. Tried below before Gaslin, J.
    
      J. G. Thompson, and Case & MoNeny, for plaintiffs in error, cited:
    
      Burson v. Huntington, 21 Mich., 415; Hathaway v. Payne, 34 N. Y., 105; Pay v. Richardson, 7 Pick. [Mass.], 91; Perry v. Patterson, 42 Am. Dec. [Tenn.], 424; Thomas v. Watkins, 16 Wis., 549*; Hunt v. Wier, 29 111., 83; Foy v. Blackstone, 31 Id., 538 ;. Brown v. Willis, 13 O., 26; Kinne v. Ford, 52 Barb. [N. Y.], 194; Canfield v. Ives, 18 Pick. [Mass], 253; 1 Daniels, Neg. Inst., sec. 67; Cotton o. Gregory, 10 Neb., 129; Dickinson v. Hall, 14 Pick. [Mass.], 217; Horner v. Rowley, 51 la., 620; Maltz v. Fletcher, 18 N. W. Rep. [Mich.], 228; Gatlin v. Birchard, 13 Mich, 422; Colman v. Post, 10 Id., 422.
    
      C. C. Flansburg contra, cited:
    
      Hansen v. Berthelson, 19 Neb., 436; 2 Parsons, Notes and Bills, 508; Lane v. Sharp, 3 Scam. [111.], 572; Harlow v. Boswell, 15 111., 57; Penny v. Graves, 12 Id., 288.
   Maxwell, J.

In January, 1887, the Bank of Stratton obtained a decree in the district court of Harlan county foreclosing a mortgage upon certain real estate in that county. The plaintiff possessed a second lien on the mortgaged premises, and at the sale under the decree purchased the property and soon afterwards paid the sheriff the costs in the action, but did not pay the purchase money. After some delay the plaintiff and others executed a note as follows:

“$350. Alma, Neb., October 15, 1888.
“Thirty days after date, I, we, or either of us, for value received, promise to pay to the order of the Bank of Alma, of Alma, Neb., $350 at their banking house, with ten per cent interest thereon from-until paid, and an attorney’s fee of ten per cent additional if suit is brought upon this note.
“(Signed) R- M. Simms.
“John A. Randall.
“S. H. Taylor.
“A. R. Arbuckle.
“I. G. Thompson.
“Dan. Sullivan.”

The testimony shows that a motion was pending in the district court to vacate and set aside the sale, and that the note was placed in the hands of C. C. Flansburg, to be held by him until the motion was disposed of, when, if the motion was overruled, it was to be delivered to the sheriff, who would thereby obtain from the bank the purchase money on the mortgage sale to the plaintiff. The motion to set aside the sale was overruled, when the sheriff obtained the note and delivered it to the defendant, which seems to have paid the full amount named therein. Some time afterwards a petition to set aside the sale was filed and sustained, the grounds of which do not appear in this case5 nor are they material in this action. The court below found the issues in favor of the defendant and rendered judgment accordingly.

There is no conflict in the testimony except as to the conditions upon which Flansburg held the note. The plaintiff contends that the note was delivered before the terms of the agreement had been complied with, while the testimony on the part of the defendant shows that before delivery there had been a full performance of the terms of the agreement. The clear weight of testimony sustains the defendant’s theory of the case. The plaintiff had purchased the property and was bound to pay for the same unless the sale was set aside. The motion was overruled and the sale confirmed. This made his liability complete, and the fact that the sale was afterwards set aside on petition could not affect the defendant’s rights, as, so far as it appears, it had nothing to do with the mortgage or mortgaged premises. It loaned its money to another to be applied on the sale, and. the borrower is liable for the loan. There is no error in the record and the judgment is

¡ Affirmed.

The other judges concur.  