The only questions raised in this case are: First, that the exceptions to the master’s report, wherein he *93found the fact to be that the consideration to be paid as the purchase price of the premises sold under the contract was $2,500, as claimed by the plaintiff, appellee, instead of $2,000, as claimed by defendants, should have been overruled, instead of confirmed, as was done by the court; and, second ,that the decree foreclosing the lien for the balance due on the purchase price of the premises failed to provide a day within which the judgment might be satisfied, and, in default of payment, to designate the method of sale and the disposition, of the proceeds.
On the first question raised it is sufficient to say that we have carefully read all of the evidence, and find that, while the testimony upon the question as to the price to be paid for the premises under the contract is conflicting, there is ample proof to sustain the findings of the master and to support the decree of the court.
As to the second question, the defendants’ counsel is mistaken in his conclusion that there was no prayer for the foreclosure of the vendor’s lien. The conclusion of the complaint, after setting out, in other parts of it, the facts and describing the premises sold as well as those mortgaged, is: “That said mortgage was duly acknowledged and filed in the office of the clerk of the United States Court for the Northern District of the Indian Territory at Muskogee, a certified copjr of said mortgage being hereto attacced, * * * whereby plaintiff says he has a lien on the property described in said mortgage, and also upon the above-described lot sold to defendants, for the purchase price of said lot. Premises considered, the plaintiff prays for a decree agáinst the defendants for his debt, and that his lien on the above-described property bo foreclosed, and that he have an order to sell the same to satisfy his judgment, and for all costs of suit.” etc. Our statute, Mansf. Dig. (Ind. Ter. St. 1899, §§ 3373, 3374, 3375), provides:
*94Sec. 5168. It shall not be necessary', in any action upon a mortgage or lien, to enter an interlocutory judgment or give time for the payment of money, or for doing any other act; but final judgment may in such case be given in the first instance.
“Sec. 5169. In the foreclosúre of a mortgage, a sale of the mortgaged property shall in all cases be ordered.
,, “Sec. 5170. In an action on a mortgage or lien, the judgment may be rendered for the sale of the property and for the recovery of the debt against-the defendant personally.”
From this it will be seen that in an action upon a mortgage or lien an interlocutory judgment giving time for the payment of the money is not required, “but final judgment may in such case be given in the first instance,” which was done. The decree, however, is faulty in failing to make any order disposing of an excess of money which might arise from the sale after the payment of the amount found due the plaintiff and the payment of costs. It is also usual to appoint a commissioner to make the sale. But, as this only relates to the execution of the decree, it may be done afterward, although the term of the court may have expired. When no such appointment is made by the order, the clerk, we think, by virtue of his general powers as the commissioner of the court, as provided by section 538, Mansf. Dig., may make the sale; and, in the absence of any order as to the disposition of the surplus arising from the sale after paying off the amount named in the decree and costs, if any, his duty would be by his report to make that fact known to the court, and the order might then be made to turn it over to the defendant. The decree, however, ought to direct a full disposition of the moneys arising from the sale.
The complaint that the court failed to direct the manner and mode of the sale is not well taken. The decree directed *95that it should be sold in accordance with the provisions of the law, and, as the manner of the sale is fully set out and provided for by the statute, this is sufficient.
The decree of the court below is affirmed , with directions to add thereto that the surplus, if any, left in the hands of the commissioner after the payments therein provided for, shall be turned over and delivered to the defendants.
Affirmed.
Townsend and Gill, JJ., concur.