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nary civil action by summons, or by publication as provided in this code, and* when all the parties in interest have been duly served, any of the proceedings herein prescribed shall be binding and conclusive upon them all. If only a portion of such parties be served, they only shall be bound by such proceedings.

All before* added 1871, p. 112.

5307 (840). The judgment of partition shall be presumptive evidence of title in the cases, and as between the parties themselves it is conclusive evidence thereof, subject, however, to be defeated by proof of a title paramount to, or independent of, that under which the parties held as joint tenants or tenants in

common.

5308 (841). All the costs of the proceedings in partition shall be paid in the first instance by the plaintiffs, but eventually by all the parties in proportion to their interests, except those costs which are created by contests above provided for.

5309 (842). Any person claiming to hold an incumbrance upon any portion of the property involved in the suit, may, in default of the owner, appear and act as his representative in any of the proceedings under this title.

5310 (843). Persons having contingent interests in such property may be made parties to the proceedings, and the proceeds of the property so situated (or the property itself, in case of partition) shall be subject to the order of the court until the right becomes fully vested.

5311 (844). The ascertained share of any absent owner shall be retained, or the proceeds invested for his benefit.

TITLE XXVII.-FORECLOSURE OF MORTGAGES BY ACTION.

5312 (845). All petitions for the foreclosure or satisfaction of mortgages shall be filed in the district court in chancery where the mortgaged premises are situated. Action of foreclosure is a proceeding in rem. 6, 391. Mistake in description may be corrected and decree of foreclosure entered in the same action. 12, 495 (11 N. W., 750). When mortgage contains condition that if a certain payment is not made the whole amount becomes due and payable, condition must be performed or foreclosure will be allowed. 6, 182. Mortgagee may pay taxes and include same in petition of foreclosure. Amount due on mortgage including taxes paid, constitute a single and indivisible demand. 11, 269 (9 N. W., 81). Equity redemption. 9, 120 (2 N. W., 218). Land itself sold, not equity of redemption. All rights of parties duly in court passed to purchaser by virtue of sheriff's deed. 8, 235. In case of foreclosure, junior incumbrancers must exercise right to redeem in time limited. 22, 743 (36 N. W., 142). Sale after tender of money to senior mortgagee by junior void. Incumbrancers not made parties to suit not affected by decree, 1, 201. When first mortgagee may foreclose, notwithstanding he has been made a party to a foreclosure by second mortgagee. 10, 373 (6 N. W., 428). Upon foreclosure by senior mortgagor, junior mortgagors not being made parties, bona fide purchaser at sale entitled to credit for improvements in action by junior mortgagors requiring him to redeem, and should not be charged with rents and profits. 24, 461 (39 N. W., 418). All incumbrancers, whether prior or subsequent, are proper parties; but only subsequent incumbrancers are necessary parties. If petition state facts sufficient to require a proper party to answer, and he fails to do so, he will be bound by the decree. 14, 323 (15 N. W., 702). In foreclosure suit, the answers of the several defendants claiming rights as lien holders, subsequent purchasers or lessees may be regarded also as cross-petitions for relief as against their respective co-defendants, as well as against the plaintiff. And any such defendant regularly served with process who fails to answer any material allegation of his co-defendant is bound thereby as well as by the decree founded thereon, and unless he appeals therefrom the same becomes, as to him, res adjudicata. Under our system of practice all parties are bound to take notice of all pleadings filed in the case. 11, 142 (7 N. W., 845). One who is made a party defendant to a foreclosure suit, but fails to appear, cannot, unless he show cause for failure, claim a lien on property after sale. 24, 379 (38 N. W., 819). Defect of title on covenant of warranty no defense. 2, 279. See 24, 580 (39 N. W., 616).

5313 (846). Whenever a petition shall be filed for the foreclosure or satisfaction of a mortgage, the court shall have power to decree a sale of the mortgaged premises, or such part thereof as may be sufficient to discharge the amount due on the mortgage, and the cost of suit.

Decree reduced $90, being the amount of possible damages in signing an appeal bond from

which no loss was incurred. 27, 250 (42 N. W., 1043). Decree modified without notice; sale thereunder unauthorized. 29, 406 (45 N. W., 680); 27, 250 (42 N. W., 1043).

5314 (847). When a petition shall be filed for the satisfaction of a mortgage, the court shall not only have the power to decree and compel the delivery of the possession of the premises to the purchaser thereof, but on the coming in of the report of sale the court shall have power to decree and direct the payment by the mortgagor of any balance of the mortgage debt that may remain unsatisfied after a sale of the mortgaged premises, in the cases in which such balance is recoverable at law; and for that purpose may issue the necessary execution, as in other cases, against other property of the mortgagor.

It is not intended that a mortgagor shall be answerable for the debt secured upon the mortgage and personalty at the same time. One of these remedies being selected, it must be exhausted before reverting to the other. 13, 543 (14 N. W., 653).

5315 (848). After such petition shall be filed, while the same is pending, and after a decree rendered thereon, no proceedings whatever shall be had at law for the recovery of the debt secured by the mortgage, or any part thereof, unless authorized by the court.

Cannot bring an action on note after petition has been filed. 9, 402 (2 N. W., 853). After foreclosure of mortgage, the mortgaged estate becomes the primary fund for the payment of the debt, and is not a mere surety for payment of the same. 11, 353 (9 N. W., 564).

5316 (849). If the mortgage debt be secured by the obligation or other evidence of debt of any other person besidse the mortgagor, the complainant may make such person a party to the petition, and the court may decree payment of the balance of such debt remaining unsatisfied after a sale of the mortgaged premises, as well against such other person as the mortgagor, and may enforce such decree as in other cases.

Purchaser of mortgaged realty, who has assumed mortgage debt, may be sued at law thereon directly by mortgagee. 27, 829 (44 N. W., 34). All persons materially interested in the mortgaged premises should be made parties to the suit. 5, 200.

5317 (850). Upon filing a petition for the foreclosure or satisfaction of a mortgage, the complainant shall state therein whether any proceedings have been had at law for the recovery of the debt secured thereby, or any part thereof, and whether such debt, or any part thereof, has been collected and paid.

Petition should state whether any action has been had for the recovery of the debt. 6, 362. Allegations sufficient. 15, 650 (19 N. W., 694).

5318 (851). If it appear that any judgment has been obtained in a suit at law for the money demanded by such petition, or any part thereof, no proceedings shall be had in such case, unless, to an execution against the property of the defendant in such judgment, the sheriff or other proper officer shall have returned that the execution is unsatisfied in whole or in part, and that the defendant has no property whereof to satisfy such execution except the mortgaged premises.

Failure to issue execution on judgment does not divest one of mortgage lien. 7, 489. 5319 (852). All sales of mortgaged premises under a decree in chancery shall be made by a sheriff, or some other person authorized by the court in the county where the premises or some part of them are situated, and in all cases where the sheriff shall make such sale he shall act in his official capacity and he shall be liable on his official bond for all his acts therein, and shall receive the same compensation as is provided by law for like services upon sales under speculation [execution].

4, 404. 680).

*

All after added 1875, p. 42. Sheriff cannot sell a greater interest than named in the order. Not necessary that court issue order of sale to sheriff. 3, 177. See 29, 406 (45 N. W.,

5320 (853). Deeds shall thereupon be executed by such sheriff, which shall vest in the purchaser the same estate that would have vested in the mortgagee if

the equity of redemption had been foreclosed, and no other or greater; and such deeds shall be as valid as if executed by the mortgagor and mortgagee, and shall be an entire bar against each of them, and all parties to the suit in which the decree for such sale was made, and against their heirs respectively, and all persons claiming under such heirs.

Deed conveys all the title of all parties to the action. 20, 283 (29 N. W., 936); 18, 130 (24 N. W., 452). The purchaser takes all the title the mortgagee had whether set up in the pleadings or not. 15, 601 (19 N. W., 494).

5321 (854). The proceeds of every sale made under a decree in chancery shall be applied to the discharge of the debt adjudged by such court to be due, and of the costs awarded, and if there be any surplus, it shall be brought into court for the use of the defendant, or of the persons entitled thereto, subject to the order of the court.

5322 (855). If such surplus, or any part thereof, shall remain in said court for the term of three months without being applied for, the court may direct the same to be put out at interest under the direction of the court, for the benefit of the defendant, his representatives or assigns, to be paid to them by the order of such

court.

5323 (856). Whenever a petition shall be filed for the satisfaction or foreclosure of any mortgage, upon which there shall be due any interest on any portion or installment of the principal, and there shall be other portions or installments to become due subsequently, the petition shall be dismissed upon the defendant bringing into court, at any time before the decree of sale, the principal and interest due, with costs.

5324 (857). If, after a decree for sale, entered against a defendant in such case, he shall bring into court the principal and interest due, with costs, the proceedings in the suit shall be stayed, but the court shall enter a decree of foreclosure and sale, to be enforced by further order of the court, upon a subsequent default in the payment of any portion or installment of the principal, or any interest thereafter to become due.

This section has no application to an action to foreclose a mortgage when the whole amount secured by the mortgage is due on account of a failure to pay interest when due, but applies only to cases brought under the preceding section. 10, 181 (4 Ñ. W., 1011).

5325 (858). If the defendant shall not bring into court the amount due, with costs, or if for any other cause a decree shall pass for the complainant, the court may direct a reference to a sheriff to ascertain and report the situation of the mortgaged premises, or may determine the same on oral or other testimony, and if it shall appear that the same can be sold in parcels, without injury to the parties, the decree shall direct so much of the mortgaged premises to be sold as will be sufficient to pay the amount then due on such mortgage, with costs, and such decree shall remain a security for any subsequent default.

5326 (859). If, in the case mentioned in the preceding section, there shall be any default subsequent to such decree in the payment of any portion or installment of the principal, or any interest due upon such mortgage, the court may, upon the petition of the complainant, by a further order, founded upon such first decree, direct a sale of so much of the mortgaged premises to be made, under such decree, as will be sufficient to satisfy the amount so due, with the costs of such petition and the subsequent proceedings thereon, and the same proceedings may be had as often as a default shall happen.

5327 (860). If, in any of the foregoing cases, it shall appear to the court that the mortgaged premises are so situated that a sale of the whole will be most beneficial to the parties, the decree shall, in the first instance, be entered for the sale of the whole premises accordingly.

5328 (861). In such case the proceeds of such sale shall be applied as well to the interest, portion, or installment of the principal due as towards the whole or residue of the sum secured by such mortgage, and not due and payable at the time of such sale, and if such residue do not bear interest, then the court may direct the same to be paid with a rebate of the legal interest, for the time during which such residue shall not be due and payable, or the court may direct the balance of the proceeds of such sale, after paying the sum due, with costs, to be put out at interest, for the benefit of the complainant, to be paid to him as the installments or portions of the principal or interest may become due, and the surplus for the benefit of the defendant, his representatives or assigns, to be paid to them on the order of the court. TITLE XXVIII.-ARBITRATION.

5329 (862). All controversies which might be the subject of civil actions may be submitted to the decision of one or more arbitrators as hereinafter provided.

Award as binding as a judgment. 3, 390.

5330 (863). The parties themselves, or those persons who might lawfully have controlled a civil action in their behalf for the same subject-matter, must sign a written agreement, specifying particularly what demands are to be submitted, the names of the arbitrators, and the court by which the judgment on their award is to be rendered.

5331 (864). They shall then appear before some justice of the peace of the county and acknowledge the instrument by them signed to be their free act and deed.

5332 (865). The submission may be of some particular matters or demands, or of all demands which the one party has against the other, or of all mutual demands on both sides.

5333 (866). A submission to arbitrators of the subject-matter of a suit may also be made by an order of court, upon an agreement of parties, after suit is commenced.

5334 (867). All the rules prescribed by law in cases of referees are applicable to arbitrators, except as herein otherwise expressed, or except as otherwise agreed upon by the parties.

5335 (868). Neither party shall have the power to revoke the submission without the consent of the other.

5336 (869). If either party neglect to appear before the arbitrators, after due notice, they may nevertheless proceeed to hear and determine the cause upon the evidence which is produced before them.

5337 (870). If the time within which the award is to be made is fixed in the submission, no award made after that time shall have any legal effect, unless made upon a recommitment of the matter by the court to which it is reported.

Conclusions of fact and law must be separately stated. 17, 593 (24 N. W., 222).

5338 (871). If the time of filing the award is not fixed in the submission, it must be filed within one year from the time such submission is signed and acknowledged, unless by mutual consent the time is prolonged.

5339 (872). The award must be in writing, and shall be delivered by one of the arbitrators to the court designated in the agreement, or it may be enclosed and sealed by them and transmitted to the court, and not opened until the court so orders.

Award must state facts found and the conclusions of law thereon separately. 1, 459. Award not set aside because it states facts separately from conclusions of law. 24, 393–4 (38 N. W., 843). 5340 (873). The cause shall be entered on the docket of the court at the term to which the award is returned, and shall be called up and acted upon in its

order. But the court may require actual notice to be given to either party, when it appears necessary and proper, before proceeding to act on the award.

5341 (874). The award may be rejected by the court for any legal and sufficient reasons, or it may be recommitted for a rehearing to the same arbitrators, or any others agreed upon by the parties.

Defendant may set up that arbitrators considered matters not submitted to them.

Arbitra

tors competent witnesses. 6, 88. Party seeking to set aside award must set forth facts on which he bases his belief. Belief not sufficient. 4,544. See 17, 593 (24 N. W., 222); 21, 686 (33 N. W., 473).

5342 (875). When the award has been confirmed, it shall be filed and entered on the record, and shall have the same force and effect as the verdict of a jury. Judgment may be entered and execution issued accordingly.

5343 (876). When an appeal is taken from such judgment, copies of the submission and award, together with all affidavits, shall be returned to the supreme

court.

5344 (877). If there is no provision in the submission respecting costs, arbitrators may award them at their discretion.

5345 (878). The compensation of the arbitrators shall be two dollars per day, for the time actually and necessarily spent, unless the court fix a less amount; and the fees of the justice of the peace shall be twenty-five cents for making out the agreement of submission (in case he does so), and the like amount for taking and certifying the acknowledgment thereto.

5346 (879). Nothing herein contained shall be construed to affect in any manner the control of the district court over the parties, the arbitrators or their award, nor to impair or affect any action upon an award or upon any bond or other engagement to abide an award.

TITLE XXIX.-GENERAL PROVISIONS APPLICABLE TO THE WHOLE CODE. CHAPTER I.-PROCESS.

5347 (880). The style of all process shall be "The state of Nebraska, county." It shall be under the seal of the court from whence the same shall issue, shall be signed by the clerk, and dated the day it issued.

See also Const., art. VI, sec. 24. Shall run in the name of the state of Nebraska; not in the name of the city. 4, 106. See 14, 143 (15 N. W., 332). Object of. 25, 698 (41 N. W., 765).

5348 (881). An order for a provisional remedy or any other process, in an action wherein the sheriff is a party, or is interested, shall be directed to the coroner. If both these officers are interested, the process shall be directed to and executed by a person appointed by the court or judge.

5349 (882). The court or judge, for good cause, may appoint a person to serve a particular process or order, who shall have the same power to execute it which the sheriff has. The person may be appointed on the motion of the party obtaining the process or order, and the return must be verified by affidavit. He shall be entitled to the fees allowed to the sheriff for similar services. County judge may appoint person to serve summons. 9, 94 (2 N. W., 376). served by party appointed by clerk cannot be first questioned in supreme court. W., 89). Cited, 13, 282 (13 N. W., 404).

CHAPTER II.-DUTIES OF CLERKS.

Replevin papers 28, 136 (44 N.

process of

5350 (883). All writs and orders for provisional remedies and every kind, shall be issued by the clerks of the several courts. Before they shall be issued, a precipe shall be filed with the clerk, demanding the same; which preeipe shall be for the direction of the clerk, and not material to the papers in the case after the issuing of such writ or process.

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