came of age, an action against a purchaser of the property who assumed the mortgage, to recover delinquent installments, can be maintained only by the children or their guardians. Hanson v. Mortensen, 2 Unof. 229 (96 N. W. 216).

528.

(1902.) Where a promissory note is executed to T. and another one to L., and at the same time a real estate mortgage securing their payment is executed to T. and L. jointly, the holders of the two notes may be joined as plaintiffs in an action to foreclose the mortgage. Guthrie v. Treat, 66 Neb. 415 (92 N. W. 595; 103 Am. St. Rep. 718).

529. (1902.) One of several parties whose debt is secured by a trust deed may maintain an action to foreclose the same on behalf of himself and the other parties interested in the security, and the court will distribute the fund arising from a sale of the property among those entitled thereto. Michigan Trust Co. v. City of Red Cloud, 3 Unof. 722 (92 N. W. 900).

531. (1879.) The nominal holder of the equity of redemption ought to be made a party defendant in an action to foreclose a mortgage. But if for any reason he is not, his interest may be ascertained and foreclosed in a subsequent action. Merriman v. Hyde, 9 Neb. 113 (2 N. W. 218).

532. (1883.) Only subsequent incumbrancers are necessary parties. White v. Bartlett, 14 Neb. 320 (16 (16 N. W. 702).

533. (1892.) In a foreclosure proceeding the holder of a prior mortgage is not a necessary party. Stratton v. Reisdorph, 35 Neb. 314 (53 N. W. 136).

534. (1901.) It is no sufficient ground to set aside a sale of real estate made in foreclosure proceedings that a party not necessary nor indispensable to the action was only constructively served with summons when he was a resident of the state. Nelson v. Nebraska Loan & Trust Co., 62 Neb. 549 (87 N. W. 320).

535. (1904.) The holder of a tax lien is not a necessary party to the foreclosure of a mortgage subsequent in point of time to

the tax lien, where the right to foreclose the tax lien has not yet accrued. Western Land Co. v. Buckley, 3 Unof. 776 (92 N. W. 1052).

536. (1907.) While an easement in real property cannot be granted by the owner thereof so as to affect the rights of a prior mortgagee, the party claiming the easement has the same rights as any other subsequent incumbrancer. If the easement has attached by lapse of time, he must be made a party to the foreclosure proceeding, and, if not, the purchaser at foreclosure sale must take action to dispute his claimed right before the statute has fully run. Jensen v. Showalter, 79 Neb. 544 (113 N. W. 202).

-Effect of death pending action. 537. (1907.) A decree in a foreclosure proceeding entered after the death of the plaintiff, occurring subsequently to the time that the jurisdiction of the court had attached, is an irregularity not open to collat eral attack. Wardrobe v. Leonard, 78 Neb. 531 (111 N. W. 134).

538. (1907.) Where the assignee of record of a decree of foreclosure procures the mortgaged property to be sold on the decree after the death of the plaintiff, and without revivor, the confirmation of the sale cures any iregularity in that respect as against an action to redeem. Wardrobe v. Leonard, 78 Neb. 531 (111 N. W. 134).

539. (1907.) The failure of the defendant in a foreclosure to procure the decree entered after the death of plaintiff to be vacated within three years after notice of the decree renders the decree unassailable. Wardrobe v. Leonard, 78 Neb. 531 (111 N. W. 134).

Proper parties.

540. (1876.) All persons materially in terested in the mortgaged premises should be made parties to a suit to foreclose a mortgage, in order that a perfect title may pass by a sale under the decree, as a purchaser takes only the title of the parties to the suit; but a person claiming adversely to the title of the mortgagor and prior to the execution of the mortgage, cannot properly be made a party for the purpose of trying the validity of such adverse claim of title. Shellenbarger v. Biser, 5 Neb. 195.

541. (1879.) In a proceeding to foreclose a mortgage the holders of tax deeds are not proper parties; but, having been made parties, the plaintiff must recover, if at all,

on the strength of his own title, and not upon the weakness of the defendant's title. Hurley v. Cox, 9 Neb. 230 (2 N. W. 705).

542. (1883.) In an action to foreclose a mortgage, all incumbrancers, whether prior or subsequent, whose claims are due, are proper parties. If the petition state facts sufficient to require a proper party to an swer and he fail to do so, he will be bound by the decree. White v. Bartlett, 14 Neb. 320 (15 N. W. 702).

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543. (1894.) It is proper to join all grantees subsequent to the recording of a mortgage defendants in a foreclosure thereof, and having been joined as a defendant the liability of one who has assumed payment of such mortgage may be enforced by a personal or a deficiency judgment, upon the theory that the court having jurisdiction in equity of the subject-matter for one purpose will afford a complete remedy as between all parties to the action. Reynolds v. Deitz, 39 Neb. 180 (58 N. W. 89).

544. (1899.) In an action to foreclose a mortgage prior incumbrancers may be made parties defendant for the purpose of having the amount and rank of their liens adjudicated. Missouri, Kansas & Texas Trust Co. v. Richardson, 57 Neb. 617 (78 N. W. 273). 545. (1901.) Persons claiming adversely to a mortgagor are not proper parties to an action to foreclose the mortgage, and in their absence their rights cannot be adjudicated. Joslin v. Williams, 61 Neb. 859 (86 N. W. 473).

Intervention.

546. (1901.) A party who asks to be made a party defendant in order to object to a confirmation of foreclosure sale for defect of parties and of service, thereby makes a general appearance. Nelson v. Nebraska Loan & Trust Co., 62 Neb. 549 (87 N. W. 320).

547. (1902.) A mortgagor who has conveyed lands by an unconditional deed of general warranty, is entitled to intervene for the purpose of pleading usury in an action to foreclose the mortgage. Pitman v. Ireland, 64 Neb. 675 (90 N. W. 540).

Guardian ad litem.

548. (1887.) In action of foreclosure, failure of court to appoint guardian ad litem does not render decree and sale void. Parker v. Starr, 21 Neb. 680 (33 N. W. 424). Process.

549. (1900.) On foreclosure of mortgage it is not necessary that the summons should

have indorsed thereon the amount for which plaintiff seeks to recover, to entitle him to a deficiency judgment. Orcutt v. Polsley, 59 Neb. 575 (81 N. W. 616).

Service by publication.

550. (1883.) Four weekly publications of a notice to foreclose a mortgage are sufficient and five weekly publications are equally valid. Fouts v. Mann, 15 Neb. 172 (18 N. W. 64).

551. (1887.) If an affidavit for service by publication fail to state a material fact, court will not acquire jurisdiction by publication of the notice; but where there is not an entire omission to state such fact, it not being fully set forth, proceedings not void, but merely voidable. Fulton v. Levy, 21 Neb. 478 (32 N. W. 307).

552. (1887.) In an action to foreclose a mortgage of real estate, when service upon the defendants by publication is desired, an affidavit in the following form, held sufficient: "Byron Reed, being first duly sworn, says he is the agent for the plaintiff in the above entitled action,. who is now absent from said Douglas county. That on the 29th day of August, 1876, the said plaintiff commenced his civil action in said district court for Douglas county, Nebraska, by filing therein his petition against the defendants above named, praying that certain lands situate in Douglas county, and in said petition particularly described, may be decreed to be sold to satisfy certain mortgages given by the said Emma Williams to said plaintiff, to secure the payment of a certain sum of money therein named; and the said Emma Williams has since conveyed the said premises to the said Eliza Whalen; and affiant further says that service of a summons cannot be made upon the said Emma Williams and Eliza Whalen within said state of Nebraska. That this amuavit is made for the purpose of obtaining service. upon them by publication, this cause being one of those mentioned in section 77 of the code of civil procedure of the general statutes of Nebraska, to-wit: Being for the sale of real property under a mortgage; and further affiant saith not." Fulton v. Levy, 21 Neb. 478 (32 N. W. 307). 553. (1888.) Where proof of service by publication in a foreclosure case has been made by affidavit which is defective, the court, in furtherance of justice, may, after the decree and sale thereunder, permit an additional affidavit to be filed, showing the

actual facts as to such publication. Britton v. Larson, 23 Neb. 806 (37 N. W. 681).

554. (1891.) A notice of the pendency of an action to foreclose a mortgage published five consecutive weeks in a weekly newspaper is a good publication, although one week longer than necessary. Taylor v. Coots, 32 Neb. 30 (48 N. W. 964; 29 Am. St. Rep. 426).

555. (1893.) An affidavit, in an action for the foreclosure of a mortgage on real estate, for service by publication, will not be held insufficient, alter decree, unless there is an entire omission to state the material facts showing a right to make service by publication. Majors v. Edwards, 36 Neb. 56 (53 N. W. 1041).

Appearance.

By intervener, see ante, § 546.

556. (1889.) Where service in a foreclosure is had upon a brother of the nonresident mortgagor, and, after a decree for plaintiff, such brother, in the name of the mortgagor, secures a stay of the order of sale, the mortgagor thereby appeared in the action and is concluded by the decree and sale thereunder. Franse v. Ambuster, 28 Neb. 467 (44 N. W. 481; 26 Am. St. Rep. 345).

E. Pleading and Evidence. Evidence of authority to receive payment, see ante, §§ 371-381.

Petition.

557. (1880.) In a foreclosure suit an allegation that C. F. M. & Bro. executed certain notes, and that F. M., "who is the C. F. M. mentioned in the firm of C. F. M. & Bro.," and his wife, gave a mortgage to secure their payment and personal service was had on both members of the firm is sufficient to sustain a decree of foreclosure, and to warrant a judgment for deficiency against the firm after a sale of the mortgaged premises. Davenport Plow Co. v. Mewis, 10 Neb. 317 (4 N. W. 1059).

558. (1885.) The petition, though primarily framed for the purpose of a judg ment quia timet, yet held sufficient to sustain judgment of foreclosure. Comstock v. Michael, 17 Neb. 288 (22 N. W. 549).

559. (1887.) A new agreement, upon a sufficient consideration, extending the time of the payment of a note and mortgage to a day certain, has the effect, in equity, of modifying the original condition of the mortgage to the same extent as if the terms

of the new agreement were incorporated into the condition, and where it is claimed that a default had occurred after the extension by which the mortgagor would be entitled to a foreclosure, such default should be alleged in the petition in order to state a cause of action. Eby v. Ryan, 22 Neb. 470 (35 N. W. 225).

560. (1895.) The lack of authorization to bring an action on a mortgage debt against a surety other than the mortgagor, is not a defense necessary to be pleaded, but the contrary should be alleged, or at least proved by the plaintiff, as, without such authorization, the action cannot be maintained. Meehan v. First Nat. Bank of Fairfield, 44 Neb. 213 (62 N. W. 490).

561. (1898.) A petition in a suit to foreclose a real estate mortgage executed to "Western Trust and Security Company," and by it sold and assigned to the plaintiff, did not fail to state a cause of action. although the mortgagee's character as a legal entity did not affirmatively appear. Barber v. Crowell, 55 Neb. 571 (75 N. W. 1109).

562. (1901.) In a suit to foreclose a real estate mortgage, brought subsequently to the maturity of the note it was given to secure, an averment in the petition that neither the debt nor any part thereof has been paid sufficiently pleads a breach of the condition of the mortgage. Durland V. Durland, 62 Neb. 813 (87 N. W. 1048).

Other proceedings to enforce mortgage or debt.

563. (1877.) In an action to foreclose a mortgage the petition must state 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. Gregory v. Hartley, 6 Neb. 356; (1897) Bing v. Morse, 51 Neb. 842 (71 N. W. 712); (1899) Jones v. Burtis, 57 Neb. 604 (78 N. W. 261); (1899) Miller v. Nicodemus, 58 Neb. 352 (78 N. W. 618); (1901) Durland v. Durland, 62 Neb. 813 (87 N. W. 1048); (1901) Pratt v. Galloway, 1 Unof. 168 (95 N. W. 329); (1901) Warren r Wales, 1 Unof. 446 (95 N. W. 610); (1902) Drury v. Roberts, 2 Unof. 574 (89 N. W. 600).

564. (1877.) If an action has been commenced on the note the petition must show either that the action has not proceeded to judgment, or if a judgment has been ob

tained, that an execution against the property of the defendant has been returned unsatisfied. Gregory v. Hartley, 6 Neb. 356. 565. (1884.) 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. Mundy v. Whittemore, 15 Neb. 647 (19 N. W. 694).

566. (1893.) The provision of the code, that the plaintiff shall state in his petition whether any proceedings have been had at law for the recovery of the debt, or any part thereof, applies alone to formal mortgages, and not to mortgages or liens arising out of the equities between the parties. Dimick v. Grand Island Banking Co., 37 Neb. 394 (55 N. W. 1066).

567. (1902.) Where a mortgage is made to secure the debt of a third party it is a sufficient compliance with sections 850 and 851 of the code of civil procedure to allege and show that judgment has been obtained against the party whose debt the mortgage was made to secure and that the sheriff has made a return to an execution issued on such judgment "no property found." Michigan Trust Co. v. City of Red Cloud, 3 Unof. 722 (92 N. W. 900).

568. (1903.) To entitle a mortgagee, who has taken a judgment, to foreclose, it is only necessary that the judgment and a return of execution as required by section 851, code of civil procedure, be set out. It is not necessary in the petition to state the non-existence of other proceedings to enforce the judgment. Montpelier Savings Bank & Trust Co. v. Follett, 68 Neb. 416 (94 N. W. 635).

569. (1903.) A petition for the foreclosure of a trust deed given by a guarantor of a certificate of deposit alleged that the plaintiff recovered law judgment at a against the bank and that an execution issued thereon has been returned unsatisfied. Held, That such allegation does not relieve the plaintiff from conforming to the requirements of section 850 of the code, requiring a petition for foreclosure to state whether any proceedings at law have been had for the recovery of the debt secured by the instrument sought to be foreclosed. Michigan Trust Co. v. City of Red Cloud, 69 Neb. 585 (96 N. W. 140).

Attachment of exhibits.

570. (1898.) In an action of foreclosure copies of instruments evidencing and secur

571. (1898.) By section 129 of the code any instrument for the unconditional payment of money only may be attached to and made part of a pleading founded thereon, but an action to foreclose a mortgage is not based on an instrument for the unconditional payment of money only. Lincoln Mortgage & Trust Co. v. Hutchins, 55 Neb. 158 (75 N. W. 538); (1898) First Nat. Bank of Chadron v. Engelbercht, 57 Neb. 270 (77 N. W. 685). [Rehearing. 58 Neb. 639.]

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572. (1898.) An action to foreclose mortgage securing a debt evidenced by a writing is one founded on a written instrument as evidence of indebtedness, within the meaning of section 124 of the code of civil procedure; and a copy of such evidence of the indebtedness must be attached to and filed with the pleading, and if not so attached and filed the petition must assign a sufficient reason therefor. First Nat. Bank of Chadron v. Engelbercht, 57 Neb. 270 (77 N. W. 685). [Rehearing. 58 Neb. 639.] 573. (1898.) In a suit to foreclose a mortgage securing the payment of a debt evidenced by another written instrument, neither the evidence of the debt nor the mortgage which secures its payment need be incorporated into the petition, nor need a copy of either the note or mortgage be attached to the petition and made a part thereof by express averment, nor need a copy of the mortgage be attached to the petition, but only a copy of the evidence of the indebtedness should be attached to and filed with the petition. First Nat. Bank of Chadron v. Engelbercht, 57 Neb. 270 (77 N. W. 685). [Rehearing. 58 Neb. 639.]

That the overruling of a motion of defendant to require the plaintiff to attach to and file with his petition a copy of the note was reversible error. First Nat. Bank of Chadron v. Engelbercht, 57 Neb. 270 (77 N. W. 685). [Rehearing. 58 Neb. 639.]

Answer.

575. (1880.) Where, after executing a mortgage, the mortgagor removed from the state, and in foreclosure proceeding service was had by publication, the defendant appearing before a final disposition of the proceeds of the sale on execution, should be permitted on motions to file an answer setting up his defenses, and also, to retain the proceeds of the sale in the court until final judgment. Brown v. Conger, 10 Neb. 236 (4 N. W. 1009).

576. (1887.) E. executed to R. a real estate mortgage to secure the payment of a promissory note at maturity. Subsequent thereto, upon a sufficient consideration, R. extended the time of payment to five years from the time of the maturity of the note. Prior to the expiration of the extended term R. brought suit for the foreclosure of the mortgage, but in his petition made no reference to the agreement for extension, nor alleged any default thereunder. T. and C. D. R., subsequent purchasers, who were made defendants, answered, setting up the extension and their purchase on the faith thereof. R. demurred to these answers as not containing facts sufficient to constitute a defense. Held, That the averments of the answers were sufficient to constitute a defense. Eby v. Ryan, 22 Neb. 470 (35 N. W. 225).

577. (1895.) Where part of the defendants in a foreclosure suit file pleadings after answer day asserting liens, they should notify the adverse parties in interest. Havemeyer v. Paul, 45 Neb. 373 (63 N. W. 932).

578. (1895.) In a suit to foreclose a mortgage the owner of the equity, after answering the petition, is not charged with notice of an answer filed after answer day by co-defendants who claim liens on the property. Havemeyer v. Paul, 45 Neb. 373 (63 N. W. 932).

579. (1896.) In a foreclosure suit, one answering that he owns the land by virtue of a deed from mortgagor duly recorded before registration of the mortgage, and praying to be decreed the owner of the land free from mortgagee's lien, must plead and

prove that he was a purchaser, not a donee; that he purchased without notice of the mortgage; that he parted with or paid a valuable consideration, stating what the consideration was; and that he parted with the consideration before receiving notice of mortgage American Exchange Nal. Bank v. Fockler, 49 Neb. 713 (68 N. W. 1039).

580. (1897.) Answer examined, and held to charge a satisfaction of the mortgage debt, which, not being put in issue by the reply, must be taken as true. Roberts v. Samson, 50 Neb. 745 (70 N. W. 384).

581. (1901.) An admission by a mort. gagor alleged to have defaulted in payment of taxes, when tax receipts are offered in evidence, "that the taxes described in the receipts were duly levied and assessed," is an admission that the assessments were made at the dates mentioned in the receipts. National Life Ins. Co. v. Butler, 61 Neb. 449 (85 N. W. 437; 87 Am. St. Rep. 462). 582. (1901.) In a suit of foreclosure where the petition alleges that no suit at law to recover the debt has been commenced, an answer by interveners alleging a want of knowledge and a denial of the allegations of the petition, is sufficient to constitute a general denial requiring proof of such allegation by plaintiffs. Pratt v. Galloway, 1 Unof. 168 (95 N. W. 329).

583. (1906.) An answer, in a foreclosure suit, that alleges that a purchaser of the equity of redemption paid the original mortgagee, and that such mortgagee accepted such payment in full satisfaction of the note and mortgage, and that he had authority to receive such payment, does not constitute a plea of either agency or estoppel sufficient to permit defendant to prove such mortgagee acted as agent of his assignee in accepting payment of the debt. Bettle v. Tiedgen, 77 Neb. 799 (116 N. W. 959).

584. (1907.) In an action to foreclose a mortgage, an admission on the trial by defendant that plaintiff is the owner of the note and mortgage, though the admission is stated in the present tense, will be held to relate to the time of filling the petition, unless it appear that a different meaning was intended. Wood v. Speck, 78 Neb. 435 (110) N. W. 1001).

Cross-petition.

585. (1896.) In a foreclosure suit the cross-petition of one who claims title to the land by virtue of a deed from the mort