may do this by taking a conveyance from one who has a complete and perfect tax title to the premises, no fraud or collusion appearing in the transaction. Safe-Deposit & Trust Co. v. Wickhem, 9 S. Dak. 341 (69 N. W. Rep. 14; 62 Am. St. Rep. 873).

Sec. 594. Marshalling securities. Where a second mortgagee holding the legal title as such, at the instance of the mortgagor conveys a portion of the premises to another who is acquainted with all the facts, he is entitled to have such portion sold first upon foreclosure of the first mortgage. Stulb v. Ainslie, 14 Wash. 567 (45 Pac. Rep. 157). Subsequent lienholders made parties to an action to foreclose a mortgage given by their debtor in good faith to secure the debt of another cannot require the plaintiff to enforce his obligation against the principals thereon before selling the mortgaged property. Webber v. Webber, 109 Mich. 147 (66 N. W. Rep. 960). Where a mortgagor conveyed the land and received the purchase money under an agreement to apply it to the discharge of the mortgage but instead of doing so took from the mortgagee a written acknowledgment of the payment of the debt and a release of the lien, in consideration of which the mortgagor executed a new note to the mortgagee for the debt, which was secured by a valid mortgage on his wife's separate estate, in a suit by the mortgagee to foreclose the original mortgage the grantee is entitled to have the property covered by the second mortgage first sold to satisfy the debt. Merritt v. Freiberg, Tex. Civ. App. (35 S. W. Rep. 835). Citing, Beaver v. Beaver, 23 Pa. St. 167; Ardesco Oil Co. v. North American Oil & Min. Co., 66 Pa. St. 375; Bishop v. Day, 13 Vt. 81 (37 Am. Dec. 582); Hays v. Ward, 4 Johns. Ch. 123 (8 Am. Dec. 554); King v. Baldwin, 2 Johns. Ch. 584; 17 Johns. 384 (8 Am. Dec. 415); Norton v. Reid, 11 S. C. 593;

White v. Schurer, 4 Baxt. 23; Stephenson v. Tarverners, 9 Grat. 398; Dempsey v. Bush, 18 Ohio St. 376; Rowan v. Manufacturing Co., 33 Conn. 11.

Sec. 595. Sale under decree of foreclosure. A plaintiff in a judgment of foreclosure has not such exclusive control thereof as will preclude the court ordering a sale to be

made thereunder, over his objection, upon motion of other parties interested. Thomas v. San Diego College Co., 111 Cal. 358 (43 Pac. Rep. 965). An administrator foreclosing a mortgage given his decedent may, for the protection of his estate, purchase the property at the foreclosure sale. Briggs v. Chicago, K. & W. R. Co., 56 Kan. 526 (43 Pac. Rep. 1131). It is not necessary to advertise the adjournment of a sale where it is made at the mortgagor's request upon sufficient notice given. Stevenson v. Dana, 166 Mass. 163 (44 N. E. Rep. 128). In the absence of some valid reason therefor a sale in parcels will not be decreed, no stipulation to that effect being in the mortgage. Montague v. Raleigh Sav. Bank, 118 N. C. 283 (24 S. E. Rep. 6). Ill. Rev. Stat., ch. 77, § 12, applied-sale in parcels or in solido. Field v. Brokaw, 159 Ill. 560 (42 N. E. Rep. 877). "The provisions of the statute requiring the sheriff to deduct from the real value of lands levied upon the amount of the liens and incumbrances prior to that of the mortgage which the property is ordered sold to satisfy, being for the sole benefit of the plaintiff, the defendant, owner of the equity, cannot be heard to object to the confirmation of the sale because such liens and incumbrances were not deducted in making the appraisement.” American Inv. Co. v. McGregor, 48 Neb. 779 (67 N. W. Rep. 785), following Smith v. Foxworthy, 39 Neb. 214 (57 N. W. Rep. 994).

Sec. 596. Notice of foreclosure sale.-Postponement. The failure of the notice to contain the names of persons made parties after the commencment of the foreclosure proceedings and whose names did not appear in the final decree will not invalidate the sale. Field v. Brokaw, 159 Ill. 560 (42 N. E. Rep. 877). Mass. Pub. Stat., ch. 181, § 17, providing for the publication of a notice of a foreclosure sale in a "newspaper, if there is any, published in the town wherein the mortgaged premises are situated," does not apply to a newspaper which is printed in another town as one of a number of papers hav-ing the same contents except different headings and date lines, and which has no office of its own in the town where the mortgaged premises are. Rose v. Fall River Five Cent Sav.

Bank, 165 Mass. 273 (43 N. E. Rep. 93). An objection that the notice of the sale was not published in a newspaper such as is designated by law for the publication of like notices, cannot be made after the confirmation of the sale, in accordance with an order of the court that the report of sale would be confirmed unless objections were made within a specified time. Minchrod v. Ullmann, 163 Ill. 25 (44 N. E. Rep. 864). The existence of a general business depression resulting in a depreciation of property will not justify a court in suspending the sale of mortgaged premises under a decree of foreclosure at the request of the plaintiff and over the objections of other interested parties. Thomas v. San Diego College Co., 111 Cal. 358 (43 Pac. Rep. 965). Citing, McGown v. Sanford, 9 Paige 290; Astor v. Romayne, 1 Johns. Ch. 310.

Sec. 597. Application of proceeds of foreclosure sale. The court may properly order the surplus to be applied to the payment of costs adjudged against the defendant in foreclosure, there being no second mortgagees claiming it. Field v. Brokaw, 159 Ill. 560 (42 N. E. Rep. 877). An amount bid by the mortgagee at a foreclosure sale in addition to the mortgage debt, under the erroneous belief that it was required to pay the sheriff's fee for making the sale, will be surplus for which the sheriff must account to the mortgagor; and a county to which surplus money arising from a foreclosure sale has been paid by the sheriff under the erroneous belief that the county could claim it as fees may be compelled to restore it to the mortgagor. Soderberg v. King Co., 15 Wash. 194 (45 Pac. Rep. 785; 55 Am. St. Rep. 878; 33 L. R. A. 670). A mortgage on lands does not secure the payment of a purchase money note given by the mortgagor for machinery located thereon, purchased by him upon conditional sale, although such note was paid by the mortgagee at the mortgagor's request; but where, upon foreclosure sale, such machinery is sold with the land and enhances the price received to the extent of such note a junior mortgagee cannot complain of the application of the proceeds to the payment of such note. Butler v. Adler-Goldman Com. Co., 62 Ark. 445 (35 S. W. Rep. 1110). Neb. Code, Civ. Proc., § 498, 507, 513, applied-duty of officer as to disposition of proceeds

of sale. Fire Ass'n v. Ruby, 49 Neb. 584 (68 N. W. Rep. 939).

Sec. 598. Foreclosure sales-Validity-Enjoining and setting aside. A foreclosure sale without appraisement as required by Ky. Gen. Stats., ch. 38, Art. 12, § 1, is void. Meddis v. Fenley, 98 Ky. 432 (33 S. W. Rep. 197). Where several pieces of property are involved in a foreclosure sale and it appears that each sold for the required statutory proportion of its appraised value, the sale cannot be set aside because in making the appraisement the appraisers added together the valuations of the several pieces of property and deducted from the aggregate sum the incumbrances. American Inv. Co. v. McGregor, 48 Neb. 779 (67 N. W. Rep. 785). Where a decree of foreclosure directs that the mortgaged property be sold by a master therein named, a sale by the sheriff to satisfy said decree under an order subsequently issued by the clerk is voidable at most, and such irregularity is cured by an order of confirmation regularly made. Link v. Connell, 48 Neb. 574 (67 N. W. Rep. 475). A sale otherwise regular and fair will not be set aside on account of the failure of the property to bring as much as was bid at a prior sale which was not consummated on account of the mortgagor's fault. Stevenson v. Dana, 166 Mass. 163 (44 N. E. Rep. 128). The naming of a defendant in the foreclosure proceedings as "Cornelia" F. instead of "Cornelius" F. will not invalidate the sale, no injury appearing to have resulted therefrom. Field v. Brokaw, 159 Ill. 560 (42 N. E. Rep. 877). If a mortgage does not reserve a homestead in land a foreclosure sale thereunder will not be enjoined in order that a homestead may be allotted, since the mortgagor could assert this right in any surplus money arising from the sale. Montague v. Raleigh Sav. Bank, 118 N. C. 283 (24 S. E. Rep. 6). A foreclosure sale cannot be enjoined on account of matters which the court rendering the decree of the foreclosure had jurisdiction of and did decide. McKinley-Lanning Loan & T. Co. v. Bassett, 5 Kan. App. 469 (46 Pac. Rep. 999). A purchaser's title is not affected by the failure of the special execution upon a foreclosure decree or the officer's return thereon to refer to the owner of the equity of redemption, a purchaser of the prop

erty subsequent to the mortgage, the mortgage having been foreclosed as to him by a supplemental decree. Flickinger v. Omaha Bridge & T. Ry. Co., 98 Ia. 538 (67 N. W. Rep. 372). A sale cannot be set aside on account of matters involving the validity of the mortgage and which could have been properly litigated in the foreclosure proceedings. Haseltine v. Gilleland, 2 Kan. App. 456 (43 Pac. Rep. 88). A mortgagee is not entitled to have her foreclosure sale set aside on account of loss resulting to her from the mistaken ideas of her attorney, at the time the property was bid in, as to the location of the buildings thereon, no fraud or bad faith on the part of others interested in the sale being shown. Marx v. Smith, 111 Mich. 125 (69 N. W. Rep. 150). Where a defendant debtor had no actual notice of the foreclosure sale of his property at which it was bid in at about one-tenth its value, and he had reason to believe that the plaintiff would bid at least the amount of his decree, he may have such sale vacated and a resale ordered, even after its confirmation, security being given that a bid will be made sufficient to pay plaintiff's claim. Kirby v. Ramsey, 9 S. Dak. 197 (68 N. W. Rep. 328). One who is made a defendant with other lien holders to an action to foreclose a mortgage and through his attorney fixes the rank of his lien by an agreement, although different from what the law would give it, cannot have a sale made under a decree in accordance with such agreement set aside on account of mistake in his attorney's judgment. Ex parte Jones, 47 S. C. 393 (25 S. E. Rep. 285). A suit by one to set aside a foreclosure sale made under a mortgage executed by him and his wife for the reason that the land was not sold in parcels is in the nature of a bill to redeem to which she is a necessary party; and they must offer to pay the mortgage debt or submit to a sale of the property in parcels for such payment. Hawes v. Detroit Fire & M. Ins. Co., 109 Mich. 234 (67 N. W. Rep. 329). Particular facts held insufficient to set aside a foreclosure sale on account of an arrangement between the parties interested which was alleged to have had the effect of preventing bidding. Ex parte Lancaster, 46 S. C. 274 (24 S. E. Rep. 195). As to setting aside sales for inadequacy of price, see Judicial Sales.