§ 25-2138 — Sale of premises; decree; power of court

Nebraska § 25-2138

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

Whenever a complaint is filed for the foreclosure or satisfaction of a mortgage, the court has the 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.

Legislative History

Source: R.S.1867, Code § 846, p. 542; R.S.1913, § 8255; C.S.1922, § 9208; C.S.1929, § 20-2140; R.S.1943, § 25-2138; Laws 2002, LB 876, § 33. Cross References: For stay of order of sale, see section 25-1506. Annotations: 1. Decree 2. Sale 3. Miscellaneous 1. Decree Decree is final judgment; is reviewable before sale and confirmation. Schuyler Building & Loan Assn. v. Fulmer, 61 Neb. 68, 84 N.W. 609 (1900). Decree in foreclosure is not personal judgment. Alling v. Nelson, 55 Neb. 161, 75 N.W. 581 (1898). 2. Sale Court may in the decree provide for the sale of the premises in parcels or en masse as the best interests of the parties may require. Michigan Mutual Life Ins. Co. v. Richter, 58 Neb. 463, 78 N.W. 932 (1899); Kane v. Jonasen, 55 Neb. 757, 76 N.W. 441 (1898). Order of sale, aside from decree, is unnecessary. Clark & Leonard Investment Co. v. Hamilton, 54 Neb. 95, 74 N.W. 430 (1898); Johnson v. Colby, 52 Neb. 327, 72 N.W. 313 (1897). Personal notice of sale and confirmation is unnecessary. Link v. Connell, 48 Neb. 574, 67 N.W. 475 (1896). A special execution may issue for sale of mortgaged premises on decree of foreclosure. Renard v. Brown, 7 Neb. 449 (1878). 3. Miscellaneous Sale of real estate on mortgage foreclosure is not a bar to withdrawal of note after foreclosure is completed and the mortgagee may bring suit thereon to collect deficiency. Federal Farm Mtg. Corp. v. Thiele, 137 Neb. 626, 290 N.W. 471 (1940). Defense of usury is not available to purchaser of equity of redemption. Building & Loan Assn. of Dakota v. Bilan, 59 Neb. 458, 81 N.W. 308 (1899). Doctrine of subrogation discussed and applied. Aultman, Miller & Co. v. Bishop, 53 Neb. 545, 74 N.W. 55 (1898); Ocobock v. Baker, 52 Neb. 447, 72 N.W. 582 (1897). Mortgagor retains legal title and substantial interest in mortgaged real estate until confirmation of sale and execution of deed, and may redeem at any time before order of confirmation becomes final. United States Nat. Bank of Omaha v. Pamp, 83 F.2d 493 (8th Cir. 1936).