10 Neb. 181 | Neb. | 1880
It is evident that the district court, in staying or modifying its decree of foreclosure, misapprehended the object and scope of sec. 857 of the code of civil procedure, which provides that: “ If after a decree for sale entered against a defendant in such case ” (a case of foreclosure simply for interest, or a portion of the principal that has become due), “ he shall bring into court the principal and interest due, with costs, the proceedings in the suit shall be stayed, but the
This provision reaches only those cases brought under sec. 856, where foreclosure is sought for a part of the mortgage debt or interest that has matured, and there are other portions still to become due, and for which further provision may be required. It was not intended as an authority to the court for relieving a party from a forfeiture, or from" the consequences of a failure to perform his engagements voluntarily assumed. As required by the admitted facts of the peT tition, the court, in entering its first decree, found that the whole amount of the debt remaining unpaid was then due. It matters not that it became due in consequence of the failure of the mortgagor to meet the annual interest as it matured, and to pay the taxes assessed against mortgaged premises, as he had agreed. If it were due it was the right of the creditor to have payment, and the duty of the court to enforce it by the usual mode.
The so-called modification or stay of the original decree, entered July 1, 1879, is therefore reversed and held for nought, and the cause is remanded to the court below, with direction to proceed with the enforcement of said original decree, which is in all things affirmed.
Judgment accordingly.
