Sec. 637. Appraisement of property and notice of foreclosure sale. An objection that the appraisement was too low comes too late when not made until after the sale. Scottish-American Mort. Co. v. Bigsby, 52 Neb. 104 (71 N. W. Rep. 961). An appraisement is not so defective as to invalidate the sale where it finds the value of each of several tracts, and the incumbrances on each, separately, but concludes by stating defendants' interest in gross. Nor will a sale be set aside, on motion of the mortgagor, because no certificates of incumbrances were procured, when the incumbrances found and deducted were less than those actually existing. Johnston v. Colby, 52 Neb. 827 (72 N. W. Rep. 313). Applying the statutes of Nebraska it is held that when a decree of foreclosure directs that a sale shall be made by the sheriff, his deputy may act for him in appraising the property. Nebraska Loan & Bldg. Ass'n v. Marshall, 51 Neb. 534 (71 N. W. Rep. 63); Johnson v. Colby, 52 Neb. 327 (72 N. W. Rep. 313). Neb. Comp. Stat., ch. 1, tit. 14; Code Civ. Proc., § 491d, applied-deposit of copy of appraisement in the office of the clerk of the court. Walker v. Patch, 52

Neb. 763 (73 N. W. Rep. 228).

Notice of a sale to be made after there has been an adjournment need not be advertised as fully as the original notice. Marcus v. Collamore, 168 Mass. 56 (46 N. E. Rep. 432). Ill. Rev. Stat., ch. 95, § 14, providing that in all sales of real estate under mortgage thirty days previous notice of such intended sale shall be given in the county or counties where the premises are situated and no sale shall be made except in the county in which the premises are situated, is held not to apply to the sale of a line of railroad with its equipments, franchises, etc. Craft v. Indianapolis D. & W. Ry. Co., 166 Ill. 580 (46 N. E. Rep. 1132). Where a decree described the property as the "S. E. quarter of section 24, in township 12 N., range 15 W., of the 6th P. M., in Buffalo county," and the description was the same in the notice of sale, except the description read "in township 12" without showing whether the township was the north or south, it is held that there was no variance in the description between the decree and the notice. Nebraska Land Stock-Growing & Inv. Co. v. McKinley-Lanning Loan & T. Co., 51 Neb. 647

(71 N. W. Rep. 312); Hamer v. McKinley-Lanning L. & T. Co., 52 Neb. 705 (72 N. W. Rep. 1041). Particular case in which the want of notice is held sufficient ground for setting aside a sale. Brewer v. Landis, 111 Mich. 217 (69 N. W. Rep. 493).

Sec. 638. Application of proceeds of foreclosure sale. A surplus arising from the sale of the equity of redemption by a second mortgagee belongs to the mortgagor in the absence of junior liens. Bobbitt v. Stanton, 120 N. C. 253 (26 S. E. Rep. 817). A mortgagee who bids more than the amount due, including expense of sale, must answer for the surplus whether the property is really worth more or less than the amount due or the sum bid. Babcock v. American Sav. & L. Ass'n, 67 Minn. 151 (69 N. W. Rep. 718). Where the holder of two mortgages upon the same land procured separate decrees of foreclosure, purchased at a sale under the junior mortgage, and subsequently had a sale under the senior mortgage at which he purchased for a sum larger than the amount due on such mortgage, it is held that the surplus should be applied to discharging his junior mortgage, and not be paid over to the mortgagor. Ind. Rev. Stat. 1894, § 1118, applied. State v. Clapp, 147 Ind. 244 (46 N. E. Rep. 533; 62 Am. St. Rep. 415). Where one having a vendor's lien upon an undivided one-half interest in a certain tract of land, joins in the execution of a mortgage on it, upon foreclosure of such mortgage he is entitled to only one-half of the surplus remaining after the satisfaction of the mortgage debt and costs. Starr v. Searcy, Ky. (38 S. W. Rep. 504). Upon foreclosure, after her death, of a mortgage upon a wife's land to secure her husband's debt, his interest in the land, if not exceeding the amount of the mortgage, should be applied to its payment and the entire surplus should be awarded to her heirs. Shields v. Yellman, 100 Ky. 655 (39 S. W. Rep. 30).

Sec. 639. Validity of foreclosure sale and sheriff's deed-Setting aside-Resale. A purchase by an executor or administrator on foreclosure of a mortgage due the estate, is not absolutely void as against the whole world, whether the purchase be in his individual name or as executor or adminis

trator. Phillips v. Love, 57 Kan. 828 (48 Pac. Rep. 142). A sheriff's sale and deed founded upon a mortgage foreclosure judgment which had been previously paid, is a nullity in the hands of a judgment creditor as purchaser; and the recording of such deed does not start the running of the statute of limitations in his favor. Corby v. Moran, 58 Kan. 278 (49 Pac. Rep. 82). A sheriff's deed founded upon a mortgage foreclosure judgment is not void upon its face unless defects sufficient to invalidate it appear in the instrument itself; and a misrecital by it of the date of the judgment upon which it is founded, which is manifestly a clerical error, and a misdescription of the land ordered to be sold, where it is manifest that the tract conveyed is a portion of the one so ordered to be sold, and a misstatement of the capacity in which plaintiff recovered judgment, as administratrix instead of in her own right, do not render such deed inadmissible in evidence; and an instruction to the jury to find against the party claiming under it because of such misrecital, misdescription, and misstatement is error. Corby v. Moran, 58 Kan. 278 (49 Pac. Rep. 82). After acquiescing in the sale for more than 20 years, a mortgagor who has consented to the sale of the mortgaged premises by a trustee appointed by a court of equity, cannot assail the validity of such a sale because the docket of the court does not show that any statement of the mortgagee's claim was filed either before or after the sale. Connaughton v. Bernard, 84 Md. 577 (36 Atl. Rep. 265). Where a sale of land under a decree of foreclosure is made by a trustee, whether or not it shall be sold in parcels or as an entirety rests in his sound discretion and where the evidence is conflicting his decision will not be overruled. Hughes v. Riggs, 84 Md. 502 (36 Atl. Rep. 269). Objection to a sale that several parcels of land were sold together which should have been offered separately, must be made within a reasonable time or relief on account thereof will be denied upon the ground of laches. Thompson v. Browne, 10 S. Dak. 344 (73 N. W. Rep. 194). Citing, Trust Co. v. Bradley, 9 S. Dak. 495 (70 N. W. Rep. 648); Marcotte v. Hartman, 46 Minn. 202 (48 N. W. Rep. 767); Vigoureux v. Murphy, 54 Cal. 346; Love v. Cherry, 24 Ia. 204; Cunningham v. Cassidy, 7 Abb. Prac. 183; Rob. erts v. Fleming, 53 Ill. 196. Where a foreclosure sale, invalid

on account of the negligence or misconduct of the mortgagee in making it, is set aside by the mortgagor and he is given an opportunity to redeem which he fails to exercise, he cannot afterwards maintain an action for damages against the mortgagee on account of his misconduct in making such sale. Dennett v. Codman, 168 Mass. 428 (47 N. E. Rep. 131). It is not a valid ground for setting aside a sale of lands, made subject to one prior incumbrance, that an action is pending in which a third party seeks to foreclose another mortgage, and to have the same declared a first lien on the property; the judgment under which the sale is made being clear and explicit in its terms as to what should be sold. Geuda Springs Town & Water Co. v. Lombard, 57 Kan. 625 (47 Pac. Rep. 532). It is not error for a court to refuse to set aside a sale made

upon the foreclosure of a first mortgage, upon the request of the second mortgagee, for the reason that he had no notice of the sale, where it appears that such second mortgagee advised the plaintiff who became the purchaser that he did not desire to purchase at the sale and the plaintiff did not know that an attorney who requested notice of the sale was acting for such second mortgagee. Homestead Land Co. v. Joseph Schlitz Brewing Co., 94 Wis. 600 (69 N. W. Rep. 346). Where a party at whose instance a foreclosure sale of real estate has been set aside, fully complies with the terms imposed by the court as conditions to setting aside the sale, it is error to enjoin. a resale of the property under the judgment merely because the officer to whom the purchaser paid the amount of his bid has made an unauthorized application of a portion of the money to the payment of taxes and costs and refuses for that reason to pay to the purchaser the whole sum paid on demand. Chapin v. Pyle, 58 Kan. 566 (50 Pac. Rep. 499).

Sec. 640. Confirmation of foreclosure sale. An order duly made confirming a foreclosure sale is an adjudication of the regularity of the proceedings of the officer making the sale and cannot be attacked in an independent action on the ground of mere inadequacy of the price for which the property sold. Phillips v. Love, 57 Kan. 828 (48 Pac. Rep. 142). A purchaser of real estate at foreclosure sale becomes a quasi party to the action so far as the proceedings confirming the sale are

concerned and may appeal from orders affecting his right to such confirmation. He is entitled to notice of an appeal from an order confirming the sale, under Wis. Rev. Stat., § 3049. Rogers v. Shove, 98 Wis. 271 (73 N. W. Rep. 989). The owner of the equity of redemption of real estate sold under mortgage foreclosure cannot be heard to object to the confirmation of the sale, because prior liens existing against the real estate were not deducted from the appraisement thereof. Nebraska Land Stock-Growing & Inv. Co. v. McKinleyLanning Loan & T. Co., 51 Neb. 647 (71 N. W. Rep. 312). Confirmation of a foreclosure sale of hotel property will not be denied because a prospective bidder was refused the privilege of inspecting the premises by the sheriff's watchman until the sheriff should arrive, it not appearing that the request was renewed to the sheriff or that he refused to allow such inspection; nor will such confirmation be denied because the hotel and the personal property contained in it were both sold together, both having been included in the same mortgage and there being no separate liens on the personal property. Worth v. Newlin, N. J. Eq. (36 Atl. Rep. 30). Particular case in which confirmation was not denied on the ground that a copy of the appraisement had not been filed before the sale was advertised. Nebraska Loan & T. Co. v. Barnes, 50 Neb. 324 (69 N. W. Rep. 761). Particular objections to con firmation held insufficient. Scottish-American Mort. Co. v. Bigsby, 52 Neb. 104 (71 N. W. Rep. 961). Ky. Stat., § 521, applied-title of mortgagor after confirmation of sale. Johnson's Admr. v. Haskins, Ky. (38 S. W. Rep. 687).

Sec. 641. Title of purchaser at foreclosure sale. A purchaser at a foreclosure sale had under a void mortgage does not acquire any title. Marks v. Wilson, 115 Ala. 561 (22 So. Rep. 134). The title of a purchaser is not affected by usury in the mortgage, where he purchased without notice of it. Hoots v. Williams, 116 Ala. 372 (22 So. Rep. 497). A purchaser at a foreclosure sale had under a mortgage describing the land by boundaries, acquires title to the entire tract though it contains more than the number of acres specified in the mortgage. Skaggs v. Kelly, Tenn. (42 S. W. Rep. 275). The purchaser takes subject to the reservations and con