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
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
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
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
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
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.
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.