Hatch v. Shold

Holcomb, J. 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 [765] ises on which insurance was carried: After some negotiations the mortgagor repaired the building thus damaged, bringing it to as good state as before the fire, and the insurance money was applied on the decree under which the property had been sold. Acknowledgment of the payment was made in the following manner and form: “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 [766] having failed because the full amount due was not forthcoming, he has altogether lost the payment thus made/ But the rule is, as we understand the law and the force of prior decisions, that the legal title to the mortgaged property remains in the mortgagor and is not divested until confirmation of sale, — possibly not until the officer making the sale has after confirmation executed and delivered a deed to the property in pursuance of the order of confirmation. Conversely, the mortgagee has during such time only a lien for the amount due him, which may, before its satisfaction, by sale or otherwise, be divested by payment of the amount due, in whole or in part. Until confirmation of sale, the mortgagor’s equity of redemption is not cut off, and his legal title to the property gives him a valuable interest therein, and a right of action to protect that interest, subject only to the superior lien of the mortgagee for the amount due on the incumbrance. The plaintiff at the time of confirmation has no right to demand of the proceeds of the sale of the mortgaged property more than a sum sufficient to pay the amount then due on the decree. This, it occurs to us, is what she attempted to do in this case, and the court ruled equitably and rightly in refusing the demand. The purchaser has no cause of complaint, because he has received all that he bargained for when he made the bid for the property, which was accepted. No question is presented in the case at bar as to the rights of parties when property has been depreciated in value by fire between a sale thereof and the time of confirmation, nor the proper application of insurance money where the property is insured and loss occurs under the circumstances last mentioned. In this case the damage was repaired at the expense of the mortgagor, and the payment made and applied on the decree was as though no loss had occurred, and as though made by the mortgagor from his personal funds. The order appealed from should be, and is, Affirmed.