In an action for the foreclosure of a real estate mortgage, the court entered a decree of foreclosure and sale, which concluded as follows:
“It is 'therefore considered, adjudged and decreed by the court that in case the defendant fails for twenty days from the entry of this decree to pay or cause to be paid to the plaintiff or clerk of this court, first the costs of this action taxed at $ — •—, and the sum of $2,685.55, so found due, with interest thereon at the rate of eight per cent, per annum from the date hereof, * * * that the defendants be foreclosed of all equity of redemption, or other interests in said mortgaged premises; that said mortgaged premises be sold, and an order of sale shall be issued to the sheriff of Antelope county, Nebraska, as upon execution, and bring the proceeds thereof into court to be applied in satisfaction of the sum so found due, in the order of their priority as above found; that he shall execute to the purchaser of said real estate a good and sufficient deed of conveyance therefor, and put such purchaser in the actual possession of said premises.”
It will be observed that the decree directs that the premises be sold “as. upon execution,” but whether -this direction has much force may be doubted, in view of the fact that the methods of judicial and execution sales contemplated by the statutes are apparently the same, where no specific procedure is enacted. Section 498 of the Code of Civil Procedure enacts: “If the court upon the return of any writ of execution or order of sale for the satisfaction of which any lands and tenements Have been sold, shall, after having carefully examined the proceedings of *548the officer, be satisfied that the sale has in all respects been made in conformity to the provisions of this title, the court shall direct the clerk to make an entry on the journal that the court is satisfied of the legality of such sale, and an order that the officer make to the purchaser a deed of such lands and tenements; and the officer on making such sale may retain the purchase money in his hands until the court shall have examined his proceedings as aforesaid, when he shall pay the same to the person entitled thereto, agreeable to the order of the court; Provided, That the judge of any district court may confirm any such sale at any time after such officer has made his .return, on motion and ten days’ notice to the adverse party or his attorney of record, if made in vacation. When any sale is confirmed in vacation, the judge confirming the same shall cause his order to be entered on the journal by the clerk.”
Section 854 is as follows: “The proceeds of every sale made under a decree in chancery, shall be applied to the discharge of the debt adjudged by such court to be due, and of the costs awarded, and if there be any surplus, it shall be brought into court for the use of the defendant, or of the person entitled thereto, subject to the order of the court.”
It will thus be-seen that the statute contemplates that in the case of a judicial or execution sale, the officer making the sale shall retain the money in his hands until confirmation, and shall them pay the same, or so much thereof as may be requisite, to the party entitled thereto, and that only the overplus thereof, if any, after making such payment, shall be paid into court. Whether, in violation of this statute, an order of the court directing the sheriff of other officer to pay the purchase money into court or to the clerk of the court, pending the confirmation, would be valid, we do not think it necessary to decide, because the order and the statute should be so construed, if possible, as to harmonize with each other, and there does not seem to be any necessary conflict between them. The sheriff is an officer of the court, and money in his hands, acquired *549in the execution of judicial process, is in as true a sense money in the possession of the court as is money in the hands of any other officer of the tribunal, so that it seems to us that the order directing the officer to bring the proceeds into court was not equivalent to an order to pay it to the clerk or to pay it into the court in any specific sense, but simply a direction to retain the money in his possession, as the statute provides, and to have it with him before the court when his return of the sale should be presented for examination and confirmation. But whether the order and the statute are in harmony or in conflict, the sheriff regarded neither. Having advertised and offered the land for sale, he struck it off to one Barkdall, as purchaser, for $2,050, that sum being less than the amount of the decree, and made the usual return of sale. He did not, however, receive any part of the purchase money which was paid by Barkdall to the defendant Abrams, who was at the time clerk of the court. Abrams made an entry of the fact on the judgment record and gave the purchaser a receipt for the money, which,without fraud or censurable negligence, he deposited in a national bank at Neligh. Within a short time after-wards the bank became .insolvent, and was taken into possession by a receiver appointed by the comptroller of the currency. Abrams made proof of his claim and received dividends thereon amounting in the aggregate to $1,332.50. It does not appear from the record that the sheriff’s sale was ever confirmed by the court, or that the officer ever conveyed or attempted to convey the premises.
This is an action by the plaintiff in foreclosure upon the official bond of the clerk to recover the amount of the deposit. A breach of the obligation is assigned in the petition in the following words: “That on the 29th day of August, 1898, by virtue of an order of the district court in an action then pending in said court in which this plaintiff was plaintiff and Orson Fields et al. were defendants, there was paid into the hands of M. M. Abrams as clerk of the district court of said county the sum of *550$2,050 for the use and benefit of this plaintiff,” and that he had failed to account for and pay over the same.
Abrams answered, admitting the receipt of the money but denying that he received it in his official capacity, or otherwise than as an individual depositary for the personal accommodation of Barkdall, and without compensation paid or promised. He further averred his freedom from negligence in the keeping of the money on deposit in the bank, the proof of the claim against the institution, and the receipt by him of the above mentioned sum in dividends, and offered to pay that amount to the plaintiff and to assign to him the receiver’s certificate in satisfaction of the demand in suit.
The separate answers of the sureties were, in substance, • general denials. A jury was waived and a trial had before the court, who rendered a judgment generally in favor of all the defendants. The plaintiff prosecutes error.
On the trial the plaintiff offered and the court received in evidence an instrument purporting to be the bond .in suit, together with, a certified copy of the record of the county board approving it. The defendants objected to both offers, and there was no other attempt to prove the execution, delivery or acceptance of the bond. We think the evidence is incompetent and insufficient to support a judgment against the defendants upon the instrument. This court held in Holt County v. Scott, 53 Neb. 176, that “the fact that an official bond.has been approved does not of itself constitute or evidence the delivery and acceptance of the bond.” Notwithstanding this rule it might, perhaps, be held that if the execution, that is the signing of the instrument by the obligors had been proved, the custody of it by the proper officials, together with the record of its approval, would be prima facie evidence of its delivery and acceptance; but, the answer being a general denial, we think that until its genuineness is established, no presumption can be entertained concerning it. As respects all the defendants except the clerk, we are *551satisfied that, for the reason just stated, there is in the record insufficient competent evidence to sustain a recovery against them, and that as to them the judgment should be affirmed.
As respects the clerk, he admits the receipt by him of the money during his incumbency of the office, but his answer tenders two defenses, first, that he did not become the custodian of the money in his official capacity; and second, that such liability as he is subject to therefor is upon his common law obligation as bailee. The plaintiff contends that the defendant has waived this latter defense by the tender made in his answer and repeated upon the trial. In support of this proposition the plaintiff relies upon the decisions of this court in Murray v. Cunningham, 10 Neb. 167; Cobbey v. Knapp, 23 Neb. 579, 591; Phœnix Ins. Co. v. Readinger, 28 Neb. 587, to the effect that “a plea of tender in an answer is an admission that the amount tendered is due the plaintiff." We are of opinion, however, that the rule thus announced is not of as broad application as the plaintiff would have us believe. The defendant does, indeed, admit that he is responsible for"the money as bailee without, hire; and by offering to pay the sum in his hands to the plaintiff, he may well be held to have admitted that the latter has in some way succeeded to the rights of the bailor and that the sum tendered is due upon the contract of bailment. But we do not discover anything in such admissions inconsistent with his explicit denial that he is or has been the official custodian of the fund or liable therefor upon his official bond. We have examined the authorities referred to in the decisions above cited and do not find anything in them calling for so extended an application of the doctrine as the plaintiff contends for. In those cases there was either no question about the nature or validity of the contract in suit, but only as to the amount recoverable thereon, or else, as in the case of Cox v. Brain, 3 Taunt. (Eng.) 95, there were several counts and the money was tendered generally. In this case Lord Chief Justice Mans*552field said that the defendant might have preserved his rights by pleading non assumpsit to the first count, on the special contract, and paying the money into court on the qtmitum valebant. The decision is an authority directly to the contrary of the contention of the plaintiff, and is to the effect that the tender is an admission of the defendant’s common law ability as bailee only, and does not impair his defense in his official character.
This brings us to the final question in the case, concerning which we have, perhaps, already sufficiently indicated our opinion. The statute explicitly makes the sheriff the official custodian of moneys obtained upon the judicial sale of real property until the confirmation of the sale, when he is required to pay the same to the persons entitled thereto. Only an unclaimed surplus thereof, if any, is he permitted to pay into court for the benefit of those ultimately entitled. Whether in any case the court can by order relieve the sheriff of this responsibility, it is not necessary now to inquire. In our opinion, the order in the case at bar “to bring the money into court,” was no more than a specific direction to the sheriff to obey the mandate of the statute. Both the officer and the purchaser were guilty of disobedience at their ovjn peril, but their conduct in that particular did not impose upon the clerk of the court, as such, any obligation foreign to the duties of his office.
Upon the undisputed facts disclosed by the record we are of opinion that the plaintiff was entitled to judgment against the defendant Abrams for the amount tendered in his answer, but without costs or interest accruing subsequently to the date of the tender.
It is recommended that the judgment of the district court as to ali the defendants except Abrams be affirmed, but as to said defendant the judgment be reversed and the case remanded for further proceeding consistent with this opinion.
Duffie and Albert, CC., concur. 1. Official Bond: Denial: Evidence. The introduction in evidence of a certified copy of what purports to be an official bond, without proof of its execution and delivery, is not sufficient to authorize the court to render a judgment against the sureties thereon where its execution and delivery are denied by them. 2. Sheriff Sole Custodian of Proceeds of Judicial Sale. The sheriff making a judicial sale of real property under a decree of foreclosure, is the sole custodian of the fund derived from such sale between the date thereof and the confirmation of such sale, and upon such confirmation it is his duty to pay the money to the person or persons entitled thereto in conformity to the order of the court. 3. Payment to Clerk: Liability Not Determined. Whether the payment of the money by the purchaser or by the sheriff to the clerk of the court in vacation, and before a confirmation of the sale, is payment into court so as to charge the clerk and his sureties on his official bond with its repayment, is not determined. 4. Denial of Execution and Delivery of Bond by Sureties: Tender by Principal. Where the sureties deny the execution and delivery of the official bond, and the clerk defends on the ground that he merely received the money as bailee, and not in his official capacity as clerk, a tender of part payment by him does not impair the defense of the sureties. 5. Confirmation is Condition Precedent to Plaintiff’s Right to Proceeds. Before a plaintiff in a foreclosure suit can recover the proceeds of a judicial sale on his decree, he must show his right thereto by proving the confirmation of the sale. 6. Former judgment adhered to.By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court as to all the defendants except Abrams be affirmed, but as to said defendant the judgment be reversed, and the case remanded for further proceeding consistent with this opinion.
Affirmed in part.