For the reasons hereinafter stated the amended moratorium order of the circuit judge made and filed November 6, 1937, from which this appeal is taken, should be affirmed.
The record discloses that upon foreclosure by advertisement the mortgaged property was bid in by defendant for costs of foreclosure and $8,209.97. This amount was the total of the $8,000 originally loaned plus $209.97 which defendant had paid for taxes on the property. In other words, the foreclosure bid did not include anything for interest in the amount of $1,216.75 which had accrued prior to the mortgage sale, October 24, 1934. After waiting practically the full year for redemption, plaintiffs herein on October 7, 1935, instituted moratorium proceedings. A moratorium order was entered which among other things required plaintiffs to pay as fair rental value $65 per month beginning October 24, 1935, and *Page 358 the period of redemption was extended to March 1, 1937. On June 4, 1937, the moratorium order was amended on defendant's motion, the only change made being an increase of the monthly payments from $65 to $80. Again on defendant's motion the court on November 6, 1937, amended the moratorium order and provided therein that the $80 monthly payments should be applied and distributed as follows:
"1st. To the payment of taxes and insurance premiums levied against the subject premises.
"2d. On the interest which had accrued on the mortgage to the date of sheriff's sale.
"3d. On the principal of the mortgage."
The second amended order, notwithstanding the original moratorium order had expired March 1, 1937, also extended the redemption period to November 1, 1938.
Appellants' objection to this last amended order is that theretofore the order provided, after applying the monthly payments to taxes and insurance premiums, the balance should be considered a credit to which the plaintiffs would be entitled in case they redeemed "any time prior to March 1, 1937." Such redemption was conditioned upon payment of defendant's bid at the foreclosure sale with interest to date at 7 per cent. and payment of any money advanced by defendant for taxes, insurance or repairs, but in computing the amount so due, plaintiffs were to be credited with the balance of their monthly payments after deducting therefrom moneys used in paying taxes and insurance premiums. The last amended order (November 6, 1937) deprives plaintiffs of the right to have this balance of their monthly payments applied as a credit on the amount otherwise required to be paid for redemption. The controlling question is whether the circuit judge in thus *Page 359 modifying his former order was guilty of an abuse of discretion. We think not.
Under the circumstances of this case in making either of the preceding orders the circuit judge might have required plaintiffs to pay the stipulated monthly amounts as "fair rental terms." Except as in the exercise of his discretion the circuit judge saw fit so to do, he was in no way obligated to include in the order a provision for a credit item on the amount that otherwise would be required of plaintiffs to redeem. However, in the first order entered the circuit judge saw fit to give plaintiffs the benefit of such a provision. Plaintiffs did not comply with the terms of the first moratorium order by redeeming "prior to March 1, 1937." Instead, months later (November 6, 1937) the question of what would constitute a proper amended order was before the court. Upon considering the matter the court gave plaintiffs additional relief by extending the period within which they might redeem from March 1, 1937, to November 1, 1938, — 20 months. At the same time he deleted from his earlier order the provision that plaintiffs should have credit for their monthly payments thereafter made under the terms of the moratorium order. There is no complaint concerning the action of the circuit judge in fixing the fair rental value of the property at $80 per month; and obviously it was within his power to require plaintiffs to make these monthly payments direct to defendant without any qualification or limitation as to any application of such payments favorable to plaintiffs. But instead of so providing, the circuit judge ordered that any excess of such payments over the amount necessary to meet taxes and insurance should be credited in plaintiffs' favor on the $1,216.75, which it seems to have been assumed plaintiffs might be obligated to pay defendant as the balance due on the mortgage *Page 360 debt over and above defendant's bid at the foreclosure sale. Such a provision as to the application was to the advantage of the plaintiffs, as compared to an order which the circuit judge might have made for monthly payments direct to defendant without specifying any application of the money so paid.
In view of the fact that the amount bid at the foreclosure sale was $1,216.75 less than the actual amount then due under the mortgage, it cannot be said the circuit judge was guilty of an abuse of discretion in not including in his amended order a provision for credit of future monthly payments on the amount necessary to redeem. A theoretical construction of this order that it is in effect a judgment for deficiency should not be allowed to interfere with the exercise of discretion with which the circuit judge is vested under the terms of the mortgage moratorium statute. Notwithstanding this final amended order, plaintiffs still had the right to redeem for the amount bid at the mortgage sale plus accrued interest thereon, which amount was several hundred dollars less than the actual mortgage debt. They were in no way compelled by this amended order to pay a deficiency decree or judgment, and the court's order should not be so construed. Instead the court fairly and reasonably exercised its discretion by requiring the continuance of monthly payments by plaintiffs at a fair rental value as a condition of extending the period of redemption for 20 months. We find nothing in this record justifying the conclusion that in so ordering the circuit judge was guilty of an abuse of discretion. The order should be affirmed, with costs to appellee.
WIEST, C.J., and BUSHNELL, J., concurred with NORTH, J. *Page 361