6332 SEC. 811. [Judgment.] After all the shares and interests of the parties have been settled in any of the methods aforesaid, judgment shall be rendered confirming those shares and interests, and directing partition to be made accordingly.

6333 SEC. 812. [Referee to make partition.] Upon entering such judgment the court shall appoint referees to make partition into the requisite number of shares.

6334 SEC. 813. [Special allotments.] For good and sufficient reasons appearing to the court, the referees may be directed to allot particular portions of the land to particular individuals. In other cases the shares must be made as nearly as possible of equal value.

6335 SEC. 814. [Referees' report.] If it appears to the referees that partition cannot be made without great prejudice to the owners, they shall so report to the court.

6336 SEC. 815. [Order of sale.] If satisfied with such report the court shall cause an order to be entered, directing the referees to sell the premises so situated and shall also fix the terms of sale.

6337 SEC. 816. [Referees-Security.] Before proceeding to sell, the referees shall each give security, to be approved by the court or judge thereof, conditioned for the faithful discharge of his duties. At any time thereafter the court may require further and better security.

6338 SEC. 817. [Sale-How conducted-Notice.] The same notice of sale shall be given as when lands are sold on execution by the sheriff, and the sale shall be conducted in like manner.

6339 SEC. 818. [Referees' report of sale.] After completing said sale, the referees must report their proceedings to the court, with a description of the different parcels of land sold to each purchaser, and the price bid therefor, which report shall be filed with the clerk.

6340 SEC. 819. [Report of incumbrances by the clerk.] After making the order of sale as aforesaid, the court shall direct the clerk to report whether there be any general incumbrance by mortgage, judgment, or otherwise, upon any portion of the property.

6341 SEC. 820. [Same-By referee.] If deemed advisable, the court may appoint a referee to inquire into the nature and amount of incumbrances, and report accordingly. From that report an appeal lies to the court.

6342 SEC. 821. [Same-Duties.] The referee shall give the parties interested at least five days notice of the time and place when he will receive proof of the amount of such incumbrances.

6343 SEC. 822. Same-Proof.] In taking such proof he may receive, with other evidence, the affidavit of the parties interested.

6344 SEC. 823. [Incumbrances-Payment.] If any incumbrance be ascertained to exist, the proceeds of the sale of that portion, after the payment of costs, or so much thereof as is necessary, shall if the owner consent, be paid over to the incumbrancer.

6345 SEC. 824. [Same-Proceeds of sale.] If the owner object to the payment of such incumbrance, the money shall be retained or invested by order of the court to await final action in relation to its disposition, and notice thereof shall be forthwith given to the incumbrancer, unless he has already been made a party.

SEC. 812. Referee may be appointed to take account of rents and profits, as well as three referees to make partition. 3 Neb., 92. SEC. $14. Referees, not court, should in first instance determine if partition is practicable. 42 Neb., 645.

6346 SEC. 825. [Issue between owner and incumbrancer.] The court may direct an issue to be made up between the incumbrancer and the owner, which shall be decisive of their respective rights.

6347 SEC. 826. [Estates for life or years.] If an estate for life or years be found to exist as an incumbrance upon any part of said property, and if the parties cannot agree upon the sum in gross which they will consider an equivalent for such estate, the court shall direct the avails of the incumbered property to be invested and the proceeds to be paid to the incumbrancer during the existence of the incumbrance.

6348 SEC. 827. [Proceedings not delayed.] The proceedings in relation to the incumbrances shall not delay the distribution of the proceeds of other shares in respect to which no difficulties exist.

6349 SEC. 828. [Security from parties.] The court in its discretion may require all or any of the parties before they receive the moneys arising from any sale authorized in this title, to give satisfactory security, to refund such moneys with interest, in case it afterward appears that such parties were not entitled thereto.

6350 SEC. 829. [Sale confirmed-Conveyance.] If the sales aforesaid be approved and confirmed by the court, an order shall be entered directing the referees, or any two of them, to execute conveyances pursuant to such sales. But no conveyance can be made until all the money is paid, without receiving from the purchaser a mortgage of the land so sold, or other equivalent security.

6351 SEC. 830. [Conveyance Effect.] Such conveyances so executed, being recorded in the county where the premises are situate, shall be valid against all subsequent purchasers, and also against all persons interested at the time who were made parties to the proceedings in the mode pointed out by law.

6352 SEC. 831. [Proceeds of shares-Investment.] If the owner of any share thus sold has a husband or wife living, and if such husband and wife do not agree as to the disposition that shall be made of the proceeds of such sale, the court must direct it to be invested in real estate under the supervision of such person as it may appoint, taking the title in the name of the owner, of the share sold as aforesaid.

6353 SEC. 832. [Sale disapproved-Money returned.] If the sales are disapproved, the money paid and the securities given must be returned to the persons respectively entitled thereto.

6354 SEC. 833. [Partition-How made-Surveyor.] When a partition is deemed proper the referees must make out the shares by visible monuments, and may employ a competent surveyor and the necessary assistants to aid them.

6355 SEC. 834. [Referees' report-Plat.] The report of the referees must be in writing, signed by at least two of them. It must describe the respective shares with reasonable particularity, and be accompanied by a plat of the premises.

6356 SEC. 835. [Shares drawn by lot.] Unless the shares are allotted to their respective owners by the referees as herein before contemplated, the clerk shall number the shares and then draw the names of the future owners by lot.

6357 SEC. 836. [Partition in part.] When partition can be conveniently made of part of the premises, but not of all, one portion may be partitioned and the other sold as hereinafter provided.

6358 SEC. 837. [Report set aside.] On good cause shown, the report may be set aside and the matter again referred to the same or other referees.

6359 SEC. 838. [Judgment.] Upon the report of the referees being confirmed, judgment thereon shall be rendered that the partition be firm and effectual forever.

6360 SEC. 839. [Defendants, how served.] The defendants may be served in the same manner as in an ordinary civil action by summons, or by publication as prescribed in chapter 11 of 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 have been served, they only shall be bound by such proceedings. [Amended 1871, 112.]

6361 SEC. 840. [Judgment-Effect.] The judgment of partition shall be presumptive evidence of title in all 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.

6362 SEC. 841. [Costs.] 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.

6363 SEC. 842. [Incumbrancers-Appearance.] Any persons 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.

6364 SEC. 843. [Contingent interests.] 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.

6365 SEC. 844. [Share of absent owner.] The ascertained share of any absent owner shall be retained, or the proceeds invested for his benefit.

TITLE XXVII.-FORECLOSURE OF MORTGAGES BY ACTION.

6366 SEC. 845. [Petition-Where filed.] All petitions for the foreclosure or satisfaction of mortgages shall be filed in the district court in chancery where the mortgaged premises are situated.

TITLE XXVII. Strict foreclosure not proper. 2 Neb., 22. 6 Neb, 362. But see 22 Neb., 743. The action is a proceeding in rem. 5 Neb., 466. 6 Id., 391. Parties. 1 Neb., 301. 4 Id., 403. 5 Id., 200. 7 Id., 454, 476. 8 Id., 235, 469. 9 Id., 120, 232. 10 Id., 378. 11 Id., 142. 14 Id., 323. 20 Id., 283. Redemption. 1 Neb., 301, 427. 3 Id., 351. 4 Id., 100, 192, 404. 7 Id., 454. 10 Id., 428. 12 Id., 336. 14 Id., 368. 15 Id., 604. 24 Id., 584. Lien. 7 Neb., 287, 409. 8 Id., 234. 9 Id., 121, 479. 14 Id., 323. 15 Id., 604. 22 Id., 710. 24 Id., 379. Rights of purchaser. 7 Neb., 453. 8 Id., 234. 10 Id., 428. 15 Id., 603. 18 Id., 130. 24 Id., 463. Defenses. 2 Neb., 278. 5 Id., 432. 10 Id., 114, 236, 427, 11 Id., 64. 15 Id., 30, 175. 16 Id., 515. 17 Id., 494. 18 Id., 127. 19 Id., 641. 20 Id., 310, 136. 22 Id., 791. 25 Id., 569, Proceeds of sale. 8 Neb., 234. 10 Id., 321. Waste. 16 Neb., 649. Set-off. 5 Neb., 433. Receivers. 9 Neb., 382. 21 Id., 296. Mortgagor not answerable for debt secured by mortgage and personally at same time; court cannot give lien upon or to affect any other property until that mortgaged is exhausted; execution cannot issue except for deficiency. 13 Neb., 543. Under 2 848 plaintiff cannot, after commencing foreclosure, have separate suit on note. 9 Neb., 403. Sec. 857 does not apply when whole debt is due, but only to cases brought under 856 for interest or portion of principal that has matured; 857 not intended to relieve party from forfeiture. 10 Neb., 183. Assignment of judgment in satisfaction; effect of reversal: assignee, held, entitled to enforce decree to extent of judg ment so assigned. 13 Neb., 573. Action to vacate decree, correct mistake, and foreclose; deceit by attorney carrying on suit without knowledge or authority of plaintiff; plaintiff not bound. 14 Neb., 36. It seems that an order of sale is not necessary. 3 Neb., 177. But see sec. 477b, ante, 4 Neb., 403. 7 Neb., 453. 9 Neb., 256. Where mortgage provides that upon failure to make one payment when it becomes due the whole debt shall be due, the court is bound to give effect to such contract. 6 Neb., 181. 10 Neb.. 183. Under an allegation in a petition that a note and mortgage were assigned to the plaintiff, he may prove an indorsement and delivery of the note. 14 Neb., 480. 15 Id., 649. An allegation in a petition that no proceedings have been had at law for the recovery of the debt secured by the mortgage is sufficient to show that no action at law has been commenced. 15 Neb., 650. A new agreement, upon a sufficient consideration, extending time of payment of note and mortgage to a day certain, has the effect, in equity, of modifying original condition of mortgage to same extent as if terms of new agreement were incorporated into condition; and where it is claimed that default has occurred after extension by which mortgagor would be entitled to a foreclosure, such default should be alleged in petition in order to state a cause of action. 22 Neb., 474. Action may be brought within ten years. 20 Neb., 504. Foreclosure for portion of notes secured, proper. Id., 503. Vacation of decree without knowledge of a defendant whose land had been excepted in decree; held, that district court had no power to enter new decree of foreclosure as against that defendant, nor did supreme court acquire jurisdiction by virtue of appeal taken in said cause by other parties to the suit. 25 Neb., 297. Payment of decree. 17 Neb, 340. Deed under sec. 853. 19 Neb., 38. Request for judgment necessary. 28 Neb., 785. Petition should state no proceeding had at law for recovery of debt. 28 Neb., 673. Amount of decree unnecessary in notice of sale. 35 Id., 315. Secs, 847-851 should be construed together. Plaintiff must exhaust one remedy before resorting to other. Procedure v. Endorser, 62 N. W. R., 490.

6367 SEC. 846. [Sale Decreed by court.] 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.

6368 SEC. 847. [Decree for deficiency.] 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.

6369 SEC. 848. [Bar to action for debt.] 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.

6370 SEC. 849. [Other security-Additional parties.] If the mortgage debt be secured by the obligation or other evidence of debt of any other person besides 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.

6371 SEC. 850. [Petition-Allegation as to debt.] 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.

6372 SEC. 851. [Judgment at law-Bar to foreclosure.] 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.

6373 SEC. 852. [Sales-By whom made.] 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]. [Amended 1875, 42. Took effect February 25, 1875.]

6374 SEC. 853. [Deed to purchaser-Effect.] 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.

SEC. 850. Applies only to formal mortgages. 37 Neb., 394.

SEC. 852. Cíted 35 Neb., 327.

1

6375 SEC. 854. [Avails of sale-Application.] 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 person entitled thereto, subject to the order of the court.

6376 SEC. 855. [Surplus-Disposition.] 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.

6377 SEC. 856. [Petition dismissed on payment.] 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.

6378 SEC. 857. [Decree-Subsequent default.] 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 grow due.

6379 SEC. 858. [Reference--Situation of premises.] 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.

6380 SEC. 859. [Further order of court.] 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 cost of such petition and the subsequent proceedings thereon, and the same proceedings may be had as often as a default shall happen.

6381 SEC. 860. [Sale of entire property.] 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.

6382 SEC. 861. [Same-Proceeds-Application.] 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

SEC. 854. Errors of computation settled on confirmation. 31 Neb., 836.