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num, payable 336 semi-annually, according to the tenor of ten
The theory of the plaintiff in the court below, and the only theory on which the judgment of the district court can be upheld, is that the mortgagor of real property retains the legal title and the right of possession until confirmation of a sale under a decree of foreclosure of the mortgage, and that such right of possession carries with it the right to the rents and profits of the mortgaged premises, and that as the plaintiff, by virtue of the sale in pursuance of the decree foreclosing its lien, acquired all the right, title and interest of the owner of the fee in and to the premises in controversy, it thereby acquired their right of possession, and, consequently, their right to the rents and profits accruing subsequently to the issuance of such deed and prior to the sale to the defendant in this case in pursuance of the decree foreclosing his mortgage. In our opinion, this the ory is unsound. In the absence of any statutory regulation, the mortgagee is entitled to the possession of the premises: Jones on Mortgages, sec. 667. The only statutory regulation on the subject in this state is that to be found in section 55, chapter 73 of the Compiled Statutes, which is as follows: "In the absence of stipulations to the contrary, the mortgagor of real estate retains the legal title and right of possession thereof." This provision leaves it competent for the parties to a mortgage to stipulate for the investiture of the mortgagee with the legal title and right of possession, which carries with it the right to the rents and profits. As we have seen, in this case, the mortgage expressly provided that upon the forfeiture of the mortgage, or in case of default in any of the payments, the mortgagee should be entitled to the immediate possession of the premises. Of this provision subsequent 338 purchasers and encumbrancers, including the plaintiff in this case, were as fully charged with notice as with any other provision of the mortgage. In California it is provided by statute that the mortgagee shall not be entitled to possession unless authorized by the express terms of the mortgage. Under this provision it was held that if the mortgagee, after condition broken, takes possession by consent of the mortgagor, it is presumed, in the absence of clear proof to the contrary, that he is to receive the rents and profits and apply them to the debts secured, and that he is to hold possession until the debt is paid : Dutton v. Warschauer, 21 Cal. 609, 82 Am. Dec. 765; Frink v. Le Roy, 49 Cal. 314. These cases, while not directly in point, clearly recognize the right of the mortgagee to the possession of the premises under a stipulation like the one under consideration. In McIntyre v. Whit
field, 13 Smedes & M. (Miss.) 88, it was held that a stipulation
Duffie and Ames, CC., concur.
opinion, the judgment of the district court is reversed, and the cause is remanded for further proceedings according to law.
A Mortgagee may be given the right to the possession of the premises as additional security for the debt: Spect v. Spect, 88 Cal. 437, 22 Am. St. Rep. 314, 26 Pac. 203. As to the rights and liabilities of a mortgagee in possession as to rents and profits, see Baker v. Cunningham, 162 Mo. 134, 62 8. W. 445, 85 Am. St. Rep. 490, and cases cited in the cross-reference note thereto; monographic notes to Caldwell v. Hall, 4 Am. St. Rep. 70, 71; Hardin v. Hardin, 27 Am. St. Rep. 793, 794.
FRAAMAN v. FRAAMAN.
[64 Neb, 472, 90 N. W. 245.) COLLATERAL ATTACK.—When a Court Acquires Jurisdiction, it has the right to decide every question which arises in the case; and its judgment, however erroneous, cannot be collater. ally assailed. Advantage of the errors can be taken only by proceedings in error or appeal to the supreme court. (p. 651.)
JUDGMENTS FOR ALIMONY are Liens on Homesteads.A Judgment for alimony in favor of a wife is a lien on the family homestead, the title whereof is in the husband. (p. 651.)
EXECUTION SALE_Determining Debtor's Interest in the Land-Apportionment of Liens.-A statute authorizing appraisers in determining a judgment debtor's interest in land for the purpose of judicial sale, to deduct the amount of all liens, does no confer authority to deduct a part of the liens, or apportion them upon the several parcels of the entire tract, to determine bis in. terest in any one parcel. (p. 652.)
EXECUTION SALE-Adjournment and Readvertisement.-There are no statutory provisions for the adjournment of an execution sale, in Nebraska, either by the court or the sheriff; and if a sale does not take place as provided by the notice, it should be readvertised. (p. 653.)
Frank E. Beeman, for the appellant.
Macfarland & ‘May and J. M. Easterling, for the appellee.
473 DAY, C. On April 5, 1898, in the district court for Douglas county, the appellee obtained a decree of divorce from appellant and a judgment for alimony in the sum of six hun. dred and fifty dollars—five hundred dollars for herself and one hundred and fifty as an attorney's fee. A transcript of this judgment was filed in the office of the clerk of the district court for Buffalo county, and an execution issued thereon and levied upon certain real estate of the appellant. The premises were appraised, advertised for sale and sold, and the sale confirmed. From the order confirming the sale the appellant brings the case to this court by appeal.
A number of objections, both to the appraisement and the confirmation of the sale were urged, and, as some of them may again arise in the further proceedings of this case, we deem it proper to pass upon them now.
The first objection to the confirmation was that the decree which formed the basis of the sale was a nullity. This contention is based upon the fact that the appellant was not permitted to defend or introduce any evidence in his behalf upon the trial because he had failed to comply with the order of the
court requiring him to pay temporary alimony and attorney's fees. Whatever might be the views of this court upon the question thus sought to be raised, had an appeal or error been taken from the judgment of the lower court, it seems clear to us that this question cannot now be raised by an objection to the sale. If it was an error of the trial court, advantage of it could 474 only be taken by a direct proceeding by error or appeal to this court. The rule is well settled that, where a court has acquired jurisdiction, it has the right to decide every question which arises in the case, and its judgment, however erroneous, cannot be collaterally assailed. If the appellant felt himself aggrieved by the ruling and orders of the trial court, and desired to have them reviewed by this court, he had a plain and adequate remedy by an appeal or error proceeding. He did, ir: fact, appeal to this court, but dismissed his appeal before the case was reached in its order.
The next objection urged is that the property sought to be sold is the homestead of the appellant. The testimony tends to show that appellant and one of his minor children were occupying the premises as a home. The testimony as to the homestead character of the premises is not very clear. But granting that it were sufficiently established, still the objection would not be good. This court has held in Best v. Zutavern, 53 Neb. 604, 74 N. W. 64, that a judgment for alimony in favor of the wife, rendered in an action for divorce, is a lien on the family homestead, the title whereof is in the husband. Chief Justice Sulli. van, the writer of that opinion, says: “The husband's right to an exempt homestead cannot, we think, be asserted against the wife who has been forced by his aggression to leave his domicile, and who, in an action for divorce, has obtained a judgment for alimony against him. The homestead law is a family shield, and cannot be employed by either spouse to wrong the other. The supreme court of Kansas, under a statute which authorized the court, upon granting a divorce, to award the wife such share of the husband's real or personal estate as shall be just and reasonable, held that the court has power to award the wife possession of the family homestead, the title of which is in him: Brandon v. Brandon, 14 Kan. 342. And, in a later case, it was de. cided by the same court that a decree which was declared to be a lien on all the husband's realty was a valid lien on the family homestead: Blankenship v. 475 Blankenship, 19 Kan. 159. The logic of these decisions is that exemption statutes are not designed to protect the husband against the wife's claim for ali