given of application for the confirmation, at a specified time and place.

§ 1393. The proof mentioned in subdivisions one and two of the last section, must be by affidavit of the party foreclosing: that of publication, by affidavit of the printer of the newspaper, or his foreman: that of posting and serving notices, and of postponing the sale, by affidavit of the person who performed the service; or if made by any other person, reasons satisfactory to the judge, why they were not made by the persons above designated, must be shown in the affidavits.

§ 1394. Upon the application for confirmation, or upon a day to which it may be adjourned, the judge may correct any error that may appear in the statement of the amount due on the mortgage; and for that purpose may examine witnesses, or receive other evidence.

If it appear to his satisfaction, by the evidence, and by inspection of the mortgage, or other collateral contract, that the holder was entitled to foreclose by reason of default in payment, and that all the proceedings have been in conformity with this chapter he must confirm the foreclosure and sale, by an order indorsed on or attached to, the affidavits or certificate and to be filed and recorded therewith in the office of the county clerk.

Ample power is given to the judge to correct errors, and it is made his duty to investigate and examine the proceedings, and either give or withhold his judicial sanction to them.

§ 1395. The order of confirmation must show:

1. The names of all the persons upon whom it appears that the notice was duly served:

2. The amount due, and the amount of costs to which the party foreclosing is entitled:

3. The whole amount for which the property was sold, stating the surplus, if any, or the deficiency, if any, remaining due on the mortgage, and unsatisfied by the sale:

4. If there be payments to become due, unsatisfied by the sale, and also other property mortgaged and not sold, it must be so stated:

5. It must direct that the foreclosure and sale be confirmed, and that the evidence with the order, be filed and recorded.

This order constitutes the judgment, and the insertion in it of the names of the persons upon whom the notice has been served, as established by evidence, together with the other facts necessary to ascertain the rights of parties and give validity to the transaction, secures an enduring record by which the rights of persons holding under the sale are rendered safe.

§ 1396. If the evidence be defective it may be amended or supplied. If it appear, that one or more parcels were sold, after a sum had been raised sufficient to satisfy the amount due with costs, the sale as to those parcels may be vacated, and in other respects confirmed. The omission to serve notice on persons other than the mortgagor, and his personal representatives, shall not affect the validity of the foreclosure and sale, in re

spect to the persons upon whom the notice was served. But a sale not confirmed as provided in this chapter is void, any money paid thereon must be restored, and the judge by order may enforce the restoration.

§ 1397. When a person, upon whom notice is required to be served, as provided in section 1386, cannot be found, and his place of residence is unknown, and cannot on diligent inquiry be ascertained, and that fact is upon the application, to confirm the sale,made to appear, by affidavit, to the satisfaction of the judge, the publication and posting of the notice, shall, be deemed a good service on such person and his name must be inserted in the order of confirmation accordingly.

§ 1398. The evidence with the order endorsed or attached, must be filed and recorded at length in the office of the clerk of the county, where the land was sold, and thereupon operates as a conveyance of the title of both the mortgagor and mortgagee to the purchaser, and, as a foreclosure of the equity of redemption of every person, upon whom the notice was served as determined in the order of confirmation, whose interest is derived from the mortgagor subsequent to the mortgage, or from a lien attached since that time.

Laws 1844, ch. 346, § 4.

§ 1399. The right of a party to enforce or foreclose a mortage, as provided in this chapter, or the validity of the mortgage, or the amount due thereon, may be contested by action, brought at any time before the sale in favor fo any party interested, against any party who may attempt or threaten such foreclosure. In such action proceedings on the summary foreclosure may be stayed by injunction on such terms, as the court may direct, and in the action the court may complete the foreclosure, or not, in its discretion.

Although this right has hitherto been recognized upon existing laws, its enactment here is deemed necessary under the provisions of this chapter.

§ 1400. At any time prior to the sale, any person having an interest or lien upon the property, subsequent to the mortgage, may assume the same, by paying to the holder the amount secured and interest, with the costs already incurred, together with the amount of any lien of the same holder subsequent to the mortgage, and prior to that of the person offering to assume it; and he shall thereupon be entitled to an assignment of the mortgage and of such subsequent lien, and may proceed in the foreclosure or discontinue it, at his option.

This section is in conformity with the decisions of the courts in relation to the equities between the holders of consecutive liens, though the decisions have not been entirely uniform, as to the extent of the right or the means to be used to acquire the rights of the senior incumbrancer. It is a case of common occurrence, and usually arises after the foreclosure has been commenced. A statutory recognition of the principle, making it available without the interference of the court, is believed to be proper.

§ 1401. Upon the application to confirm the sale, or at such other time as the judge may then appoint, he must proceed to determine in a summary manner, the right of any person entitled to an interest in surplus money arising on the sale. He must also make such order, as may be necessary, for the disposition of any money in the sheriff's hands. His orders in the case may be enforced in the same manner as orders in actions, and disobedience thereof may be punished in the

same manner.

§ 1402. The order of a judge, respecting the payment or distribution of money arising upon the sale of mortgaged property, pursuant to this chapter, is subject to appeal to the supreme court, in the same manner, as an order refusing a state writ.

§ 1403. When a part of the money secured by the mortgage only is due, and part of the property remains unsold, the mortgage may, for any subsequent default, be again foreclosed, as to the remainder of such property, and a sale thereof made as at first.

Under a foreclosure pursuant to a power of sale by advertisement, when part of the money only is due, and a part of the property sold, it is doubtful whether another sale can be had. This section obviates any question on that point.

§ 1404. When there is a surplus, arising on the sale, beyond the amount due, with costs, and there remains a sum, secured by the mortgage, yet to become due, the holder of the mortgage is entitled to receive such