62 Neb. 764 | Neb. | 1901
After a decree of foreclosure of a real estate mortgage had been rendered, and the property bid in by a trustee of the plaintiff under an order of sale issued in pursuance thereof, but before the confirmation of sale, it appears that a fire damaged the building on the mortgaged prem
“Chadron, Nebr., November 14, 1898.
“Received of N. Shold per G. T. H. Babcock the sum of one hundred eighty-five and 75-100 dollars to apply on decree of foreclosure Hatch v. Shold,” — signed by the plaintiff by her attorney.
On application for confirmation of sale, and at the time thereof, the trial court entered an order directing the payment to the defendant mortgagor the excess of the proceeds of the sale, after deducting costs and the amount of the decree, with interest, less the payment above mentioned. From this order the plaintiff appeals, insisting the payment should not have been deducted from the amount of the face of the decree, with interest. This contention is certainly most inequitable. The purchaser on confirmation obtained title to all the property that he had bid in, and as valuable as it was when the bid was made at sheriff’s sale. He was not asking to have the sale set aside for any reason, but prayed its confirmation on-the terms of sale at which he had hid the property in. We can conceive of no rule by which the plaintiff could ask to have paid her in satisfaction of her decree more than was due when it was satisfied. Suppose the purchase), had been some third party and the decree had before confirmation been satisfied to the extent of one-half of the amount due; would- the plaintiff be in a position to rightly claim of the proceeds of the sale the full amount of her decree? We think not. We are not favored with any brief by the appellee. The appellant takes the position that the mortgagor after the sale had only-the bare right to redeem the premises from the sale, and uo other right, interest or title in the land whatever, and that the payment can only be regarded as an attempt to redeem, which
The order appealed from should be, and is,
Affirmed.