await final action in relation to its disposition, and notice thereof shall be forthwith given to the incumbrancer, unless he has already been made a party.

SEC. 825. [Issue between owner and incumbrancer.]-The court may direct an issue to be made up between the incumbrancer and the owner, which shall be decisive of their respective rights.

SEC. 826. [Estates for life or years.]—If an estate for life or years be found to exist as an incumbrance upon any part of said property, and if the parties cannot agree upon the sum in gross which they will consider an equivalent for such estate, the court shall direct the avails of the incumbered property to be invested and the proceeds to be paid to the incumbrancer during the existence of the incumbrance.

SEC. 827. [Proceedings not delayed.]-The proceedings in relation to the incumbrances shall not delay the distribution of the proceeds of other shares in respect to which no difficulties exist.

SEC. 828. [Security from parties.]—The court in its discretion may require all or any of the parties before they receive the moneys arising from any sale authorized in this title, to give satisfactory security, to refund such moneys with interest, in case it afterward appears that such parties were not entitled thereto.

SEC. 829. [Sale-Confirmed-Conveyance.]-If the sales aforesaid be approved and confirmed by the court, an order shall be entered directing the referees, or any two of them, to execute conveyances pursuant to such sales. But no conveyance can be made until all the money is paid, without receiving from the purchaser a mortgage of the land so sold, or other equivalent security.

SEC. 830. [Conveyance-Effect.]-Such conveyances so executed, being recorded in the county where the premises are situate, shall be valid against all subsequent purchasers, and also against all persons interested at the time who were made parties to the proceedings in the mode pointed out by law.

SEC. 831. [Proceeds of shares-Investment.]-If the owner of any share thus sold has a husband or wife living, and if such husband and wife do not agree as to the disposition that shall be made of the proceeds of such sale, the court must direct it to be invested in real estate under the supervision of such person as it may appoint, taking the title in the name of the owner, of the share sold as aforesaid.

SEC. 832. [Sale disapproved-Money returned.]—If the sales are disapproved, the money paid and the securities given must be returned to the persons respectively entitled thereto.

SEC. 833. [Partition-How made-Surveyor.]-When a partition is deemed proper the referees must make out the shares by visible monuments, and may employ a competent surveyor and the necessary assistants to aid them.

SEC. 834. [Referees report-Plat.]-The report of the referees must be in writing, signed by at least two of them. It must describe the respective shares with reasonable particularity, and be accompanied by a plat of the premises.

SEC. 835. [Shares drawn by lot.]-Unless the shares are allotted to their respective owners by the referees as hereinbefore contemplated, the clerk shall number the shares and then draw the names of the future owners by lot.

SEC. 836. [Partition in part.]-When partition can be conveniently made of part of the premises, but not of all, one portion may be partitioned and the other sold as hereinafter provided.

SEC. 837. [Report set aside.]-On good cause shown, the report may be set aside and the matter again referred to the same or other referees.

SEC. 838. [Judgment.]—Upon the report of the referees being confirmed, judgment thereon shall be rendered that the partition be firm and effectual forever.

SEC. 839. [Defendants, how served.]-The defendants may be served in the same manner as in ordinary civil action by summons, or by publication as provided in this code, and when all the parties in interest have been duly served, any of the proceedings herein prescribed shall be binding and conclusive upon them all. If only a

portion of such parties be served, they only shall be bound by such proceedings [Amended 1871, 112.]

SEC. 840. [Judgment - Effect.] - The judgment of partition shall be presumptive evidence of title in all cases, and as between the parties themselves it is conclusive evidence thereof, subject, however, to be defeated by proof of a title paramount to, or independent of, that under which the parties held as joint tenants or tenants in common.

SEC. 841. [Costs.]-All the costs of the proceedings in partition shall be paid in the first instance by the plaintiffs, but eventually by all the parties in proportion to their interests, except those costs which are created by contests above provided for.

SEC. 842. [Incumbrancers - Appearance.] Any person claiming to hold an incumbrance upon any portion of the property involved in the suit, may, in default of the owner, appear and act as his representative in any of the proceedings under this title.

SEC. 843. [Contingent interests.]-Persons having contingent interests in such property may be made parties to the proceedings, and the proceeds of the property so situated (or the property itself, in case of partition), shall be subject to the order of the court until the right becomes fully vested.

SEC. 844. [Share of absent owner.]-The ascertained share of any absent owner shall be retained, or the proceeds invested for his benefit.

TITLE XXVII.-FORECLOSURE OF MORTGAGES BY ACTION.

SEC. 845. [Petition-Where filed.]-All petitions for the foreclosure or satisfaction of mortgages shall be filed in the district court in chancery where the mortgaged premises are situated.

SEC. 846. [Sale-Decreed by court.]-Whenever a petition shall be filed for the foreclosure or satisfaction of a mortgage, the court shall have power to decree a sale of the mortgaged premises, or such part thereof as may be sufficient to discharge the amount due on the mortgage, and the cost of suit.

SEC. 847. [Decree for deficiency.]—When a petition shall be filed for the satisfaction of a mortgage, the court shall not only have the power to decree and compel the delivery of the possession of the premises to the purchaser thereof, but on the coming in of the report of sale, the court shall have power to decree and direct the payment by the mortgagor of any balance of the mortgage debt that may remain unsatisfied after a sale of the mortgaged premises, in the cases in which such balance is

TITLE XXVII. Strict foreclosure not proper. 2 Neb. 22. 6 Neb. 362. But see 22 Neb. 743. The action is a proceeding in rem. 5 Neb. 466. 6 Id. 391. Parties. 1 Neb. 301. 4 Id. 403. 5 Id. 200. 7 Id. 454, 476. 8 ld. 235, 469. 9 Id. 120. 232. 10 Id. 378. 11 Id. 142. 14 Id. 323. 20 Id. 283. Redemption. 1 Neb. 301, 427. 3 Id. 351. 4 Id. 100, 192. 404. 7 Id. 454. 10 Id. 428. 12 Id. 336. 14 Id. 368. 15 Id. 604. 24 Id. 584. Lien. 7 Neb. 287, 409. 8 Id. 224, 9 ld. 121, 479. 14 Id. 323. 15 Id. 604. 22 Id. 710. 24 Id. 879. Rights of purchaser. 7 Neb. 453. 8 Id. 234. 10 Id. 428. 15 Id. 603. 18 Id. 130. 24 Id. 463. Defenses. 2 Neb. 278. 5 Id. 432. 10 Id. 114, 236, 427. 11 Id. 64. 15 Id. 30, 175. 16 Id. 515. 17 Id. 494. 18 Id. 127. 19 Id. 641. 20 Id. 310, 136. 22 Id. 791. 25 Id. 569. Proceeds of sale. 8 Neb. 234. 10 Id. 321. Waste. 16 Neb. 649. Set-off. 5 Neb. 433. Receivers, 9 Neb. 382. 21 Id. 296. Mortgagor not answerable for debt secured by mortgage and personally at same time; court cannot give lien upon or to affect any other property until that mortgaged is exhausted; execution cannot issue except for deficiency. 13 Neb. 543. Cuder $848 plaintiff cannot, after commencing foreclosure, have separate suit on note. 9 Neb. 403. Sec. 857 does not apply when whole debt is due, but only to cases brought under § 856 for interest or portion of principal that bas matured; § 857 not intended to relieve party from forfeiture. 10 Neb. 183. Assignment of judgment in satisfac tion; effect of reversal; assignee, Held, Entitled to enforce decree to extent of judgment so assigned. 13 Neb. 573. Action to vacate decree, correct mistake, and foreclose; deceit by attorney carrying on suit without knowledge or authority of plaintiff; plaintiff not bound. 14 Neb. 36. It seems that an order of sale is not necessary. 3 Neb. 177. But see sec. 477 b, ante. 4 Neb. 403. 7 Neb. 453. 9 Neb. 256. Where mortgage provides that upon failure to make one payment when it becomes due the whole debt shall be due, the court is bound to give effect to such contract. 6 Neb. 181. 10 Neb. 183. Under an allegation in a petition that a note and mortgage were assigned to the plaintiff, he may prove an indorsement and delivery of the note. 14 Neb. 480. 15 Id. 649. An allegation in a petition that no proceedings have been had at law for the recovery of the debt secured by the mortgage is sufficient to show that no action at law has been commenced. 15 Neb. 650. A new agreement, upon a sufficient consideration, extending time of payment of note and mortgage to a day certain, has the effect, in equity, of modifying original condition of mortgage to same extent as if terms of new agreement were incorporated into condition; and where it is claimed that default has occurred after extension by which mortgagor would be entitled to a fore closure, such default should be alleged in petition in order to state a cause of action. 22 Neb. 474. Action may be brought within ten years. 20 Neb. 504. Foreclosure for portion of notes secured, proper. Id. 503. Vacation of decree without knowledge of a defendant whose land had been excepted in decree: Held, That district court had no power to enter new decree of foreclosure as against that defendant, nor did supreme court acquire jurisdiction by virtue of appeal taken in said cause by other parties to the suit. 25 Neb. 297. Payment of decree. 17 Neb. 340. Deed under sec. 853. 19 Neb. 3. Request for judgment necessary. 28 Neb. 785. Petition should state no proceeding had at law for recovery of debt. 28 Neb. 673. Amount of decree unnecessary in notice of sale. 35 Id. 315.

.

recoverable at law; and for that purpose may issue the necessary execution, as in other cases, against other property of the mortgagor.

SEC. 848. [Bar to action for debt.]-After such petition shall be filed, while the same is pending, and after a decree rendered thereon, no proceedings whatever shall be had at law for the recovery of the debt secured by the mortgage, or any part thereof, unless authorized by the court.

SEC. 849. [Other security-Additional parties.]-If the mortgage debt be secured by the obligation or other evidence of debt of any other person besides the mortgagor, the complainant may make such person a party to the petition, and the court may decree payment of the balance of such debt remaining unsatisfied after a sale of the mortgaged premises, as well against such other person as the mortgagor, and may enforce such decree as in other cases.

SEC. 850. [Petition-Allegation as to debt.]-Upon filing a petition for the foreclosure or satisfaction of a mortgage, the complainant shall state therein whether any proceedings have been had at law for the recovery of the debt secured thereby, or any part thereof, and whether such debt, or any part thereof, has been collected and paid.

SEC. 851. [Judgment at law-Bar to foreclosure.]—If it appear that any judgment has been obtained in a suit at law for the money demanded by such petition, or any part thereof, no proceedings shall be had in such case, unless, to an execution against the property of the defendant in such judgment, the sheriff or other proper officer shall have returned that the execution is unsatisfied in whole or in part, and that the defendant has no property whereof to satisfy such execution except the mortgaged premises.

SEC. 852. [Sales-By whom made.] — All sales of mortgaged premises under a decree in chancery shall be made by a sheriff, or some other person authorized by the court in the county where the premises or some part of them are situated, and in all cases where the sheriff shall make such sale he shall act in his official capacity and he shall be liable on his official bond for all his acts therein, and shall receive the same compensation as is provided by law for like services upon sales under speculation [execution]. [Amended 1875, 42. Took effect Feb. 25, 1875.]

SEC. 853. [Deed to purchaser-Effect.]-Deeds shall thereupon be executed by such sheriff, which shall vest in the purchaser the same estate that would have vested in the mortgagee if the equity of redemption had been foreclosed, and no other or greater; and such deeds shall be as valid as if executed by the mortgagor and mortgagee, and shall be an entire bar against each of them, and all parties to the suit in which the decree for such sale was made, and against their heirs respectively, and all persons claiming under such heirs.

SEC. 854. [Avails of sale-Application.]—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.

SEC. 855. [Surplus - Disposition.] If such surplus, or any part thereof, shall remain in said court for the term of three months without being applied for, the court may direct the same to be put out at interest under the direction of the court, for the benefit of the defendant, his representatives, or assigns, to be paid to them by the order of such court.

SEC. 856. [Petition dismissed on payment.]-Whenever a petition shall be filed for the satisfaction or foreclosure of any mortgage, upon which there shall be due any interest on any portion or installment of the principal, and there shall be other portions or installments to become due subsequently, the petition shall be dismissed

SEC, 852. Cited. 35 Neb. 327.

SEC. 854. Errors of computation settled on confirmation. 31 Neb. 836.

962

upon the defendant bringing into court, at any time before the decree of sale, the principal and interest due, with costs.

SEC. 857. [Decree-Subsequent default.]-If, after a decree for sale, entered against a defendant in such case, he shall bring into court the principal and interest due, with costs, the proceedings in the suit shall be stayed, but the court shall enter a decree of foreclosure and sale, to be enforced by further order of the court, upon a subsequent default in the payment of any portion or installment of the principal, or any interest thereafter to become due.

SEC. 858. [Reference-Situation of premises.]-If the defendant shall not bring into court the amount due, with costs, or if for any other cause a decree shall pass for the complainant, the court may direct a reference to a sheriff to ascertain and report the situation of the mortgaged premises, or may determine the same on oral or other testimony, and if it shall appear that the same can be sold in parcels, without injury to the parties, the decree shall direct so much of the mortgaged premises to be sold as will be sufficient to pay the amount then due on such mortgage, with costs, and such decree shall remain a security for any subsequent default.

SEC. 859. [Further order of court.]-If, in the case mentioned in the preceding section, there shall be any default subsequent to such decree in the payment of any portion or installment of the principal, or any interest due upon such mortgage, the court may, upon the petition of the complainant, by a further order, founded upon such first decree, direct a sale of so much of the mortgaged premises to be made, under such decree, as will be sufficient to satisfy the amount so due, with the costs of such petition and the subsequent proceedings thereon, and the same proceedings may be had as often as a default shall happen.

SEC. 860. [Sale of entire property.]—If, in any of the foregoing cases, it shall appear to the court that the mortgaged premises are so situated that a sale of the whole will be most beneficial to the parties, the decree shall, in the first instance, be entered for the sale of the whole premises accordingly.

SEC. 861. [Same-Proceeds-Application.]-In such case the proceeds of such sale shall be applied as well to the interest, portion, or installment of the principal due as towards the whole or residue of the sum secured by such mortgage, and not due and payable at the time of such sale, and if such residue do not bear interest, then the court may direct the same to be paid with a rebate of the legal interest, for the time during which such residue shall not be due and payable, or the court may direct the balance of the proceeds of such sale, after paying the sum due, with costs, to be put out at interest, for the benefit of the complainant, to be paid to him as the installments or portions of the principal or interest may become due, and the surplus for the benefit of the defendant, his representatives, or assigns, to be paid to them on the order of the

court.

TITLE XXVIII. ARBITRATION.

SEC. 862. [Controversies submitted.]—All controversies which might be the subject of civil actions, may be submitted to the decision of one or more arbitrators as hereinafter provided.

SEC. 863. [Written agreement to submit.]-The parties themselves, or those persons who might lawfully have controlled a civil action in their behalf for the same subject matter, must sign a written agreement specifying particularly what demands are to be submitted, the names of the arbitrators, and the court by which the judgment on their award is to be rendered.

SEC. 864. [Acknowledgement before justice.]-They shall then appear before some justice of the peace of the county and acknowledge the instrument by them signed to be their free act and deed.

SEC. 865. [Demands submitted.]—The submission may be of some particular

SEC. 862. Statutory mode not exclusive. & Neb. 389. mitted, general finding sufficient. 15 Id. 491.

Arbitrators must pass on all material matters sub

matters or demands, or of all demands which the one party has against the other, or of all mutual demands on both sides.

SEC. 866. [Submission by order of court.]-A submission to arbitrators of the subject matter of a suit may also be made by an order of court, upon an agreement of parties, after suit is commenced.

SEC. 867. [Rules applicable.]-All the rules prescribed by law in cases of referees are applicable to arbitrators, except as herein otherwise expressed, or except as otherwise agreed upon by the parties.

SEC. 868. [Revocation of submission.]-Neither party shall have the power to revoke the submission without the consent of the other.

SEC. 869. [Default in appearance.]-If either party neglect to appear before the arbitrators, after due notice, they may nevertheless proceed to hear and determine the cause upon the evidence which is produced before them.

SEC. 870. [Award-When made.]-If the time within which the award is to be made is fixed in the submission, no award made after that time shall have any legal effect, unless made upon a recommitment of the matter by the court to which it is reported.

SEC. 871. [Same-Filing.]-If the time of filing the award is not fixed in the submission, it must be filed within one year from the time such submission is signed and acknowledged, unless by mutual consent the time is prolonged.

SEC. 872. [Same-In writing.]—The award must be in writing, and shall be delivered by one of the arbitrators to the court designated in the agreement, or it may be enclosed and sealed by them and transmitted to the court, and not opened until the court so orders.

SEC. 873. [Same-Docketing-Notice.]-The cause shall be entered on the docket of the court at the term to which the award is returned, and shall be called up and acted upon in its order. But the court may require actual notice to be given to either party, when it appears necessary and proper, before proceeding to act on the award.

SEC. 874. [Same-Rejection by court.]-The award may be rejected by the court for any legal and sufficient reasons, or it may be recommitted for a rehearing to the same arbitrators, or any others agreed upon by the parties.

SEC. 875. [Same-Effect-Judgment.]-When the award has been confirmed, it shall be filed and entered on the record, and shall have the same force and effect as the verdict of a jury. Judgment may be entered and execution issued accordingly.

SEC. 876. [Appeal.]-When an appeal is taken from such judgment, copies of the submission and award, together with all affidavits, shall be returned to the supreme

court.

SEC. 877. [Costs.-If there is no provision in the submission respecting costs, arbitrators may award them at their discretion.

SEC. 878. [Fees.]-The compensation of the arbitrators shall be two dollars per day, for the time actually and necessarily spent, unless the court fix a less amount; and the fees of the justice of the peace shall be twenty-five cents for making out the agreement of submission (in case he does so), and the like amount for taking and certifying the acknowledgment thereto.

SEC. 879. [Construction of act.]-Nothing herein contained shall be construed to affect in any manner the control of the district court over the parties, the

SEC. 872. Award must state facts found, and conclusions of law separately. 1 Neb. 459. 17 Id. 598. Award will not be set aside because arbitrators find facts separately from the conclusions of law. 24 Neb. 393. SEC. 873. Giving of notice is matter of discretion. 3 Neb. 228. 18 Id. 573. Defenses. 6 Neb. 87. Arbitrators may be witnesses. Id. 89. A party seeking to avoid award for fraud, etc., must set set forth facts on which he bases his belief. 4 Neb. 543. Appeal lies. Id. 6 Id. 273. Award may be attacked by motion to reject and set aside; if overruled and judgment entered on award motion for new trial not necessary. 17 Neb. 596. Where parties enter into written agreement ratifying verbal award, no action can be brought upon original items of account submitted to arbitration, without showing some adequate cause for setting award aside. 21 Neb. 688. Matters not submitted to arbitrators or not considered by them in making award may be sued on as though no such award had been made. Id.