specially concurring.
I am in agreement with the judgment of this Court reversing the judgment of the lower court. I am also in agreement with the view of the Chief Justice that the absence of an acceleration clause precluded the entry of judgment for an amount over and beyond the payments and obligations which were in default.
Accordingly I concur in the holding that the trial court erred in entering judgment for any amount other than that which was due and owing at the date of entry of judgment. Beyond that I cannot go, because I do not believe that prior to judicial sale the purchaser had any obligation to tender any amount other than what had been adjudged due and owing by the district court’s judgment. Above all, I do not agree with giving of specific directions to the district court to govern proceedings on remand, although I do not doubt that they are given with a benevolent intent; 120 days may be a larger time than the seller is contractually required to extend.
Purely by way of comment, because it is not an issue, I question the advisability of the district court’s resolution of this controversy on a motion for summary judgment. The suggestion strongly appears that such a procedure resulted in the district court taking the cause under advisement without either party bringing to its attention the absence of an acceleration clause in the contract, and accordingly was brought into error in entering a judgment which encompassed payments due and unpaid — plus the unmatured balance of the contract purchase price.