sale, did order that said sale be confirmed, and that said sheriff of said county should convey said premises to the said by a good and sufficient deed.

Now, THEREFORE, I,

as sheriff of

County,

aforesaid, party of the first part, by virtue of said writ and order, and in pursuance of the statute in such cases made and provided, and for and in consideration of the sum of $

to me in hand paid, by -, party of the second part, the receipt whereof is hereby acknowledged, does grant, bargain, sell and convey unto said party of the second part, his heirs and assigns forever, the following described real estate, to-wit: (Here describe it), together with all the privileges and appurtenances thereunto belonging.

TO HAVE AND TO HOLD said premises, with the appurtenances unto the said party of the second part, his heirs and assigns forever, as fully and completely as he, the said sheriff, aforesaid, by virtue of said judgment and order of sale and confirmation, and the statutes of said State may or ought to grant, bargain, sell and convey the same.

IN WITNESS WHEREOF, the party of the first part has hereunto set his hand the day and year first above written.

Sheriff of

County, State of Oklahoma.

County, ss.:

State of Oklahoma,

a notary public in and for said county and day of

19-, personally appeared

to me known to be the identical person who executed the within and foregoing instrument, and acknowledged to me that he executed the same in his capacity therein stated, and as his free and voluntary act and deed for the uses and purposes therein set forth.

[SEAL.]

My commission expires

Notary Public.

CHAPTER XVIII.

THE LAW AND PROCEDURE BY WHICH A MORTGAGE ON REAL ESTATE IS FORECLOSED.

Sec. 1053. The venue of the action to foreclose a mortgage. The statute provides that the action for foreclosure of a mortgage must be brought in the county where the land is located.1

Sec. 1054. The procedure incidental to the action to foreclose a mortgage on real estate.

Ordinarily the action is brought for a personal judgment, and for the foreclosure of the mortgage to satisfy the debt. 1 Snyder, 5,580.

In such an action service of summons must be personal; for a personal judgment cannot be secured by constructive service, even though the court had jurisdiction over the property. The usual form for such petition is, in one cause of action, to declare on the note in the ordinary way, and in the second cause of action, on the mortgage given to secure the same. The cause of action setting forth the mortgage may, by apt and accurate language, adopt the allegations of the cause of action declaring on the note, but reference to the adoption must be clear and definite, not leaving any doubt as to its meaning.3

The petition should allege the execution and delivery of the mortgage to secure the payment of the note, and contain a description of the real estate and the conditions contained. in the defeasance clause of the mortgage, the default making the mortgage absolute, the date of the filing of the mortgage in the office of register of deeds, and the date of the recording thereof, and the volume and page of the record thereof, and also a prayer for personal judgment and for foreclosure of the mortgage.

Where the service is constructive, in case no personal judgment is sought, the petition need contain only one cause of action. In such case the prayer is that the court may find the amount due plaintiff, that the mortgage be foreclosed and the real estate therein described sold to satisfy the amount so found due. Everyone claiming an adverse interest in the real estate should be made a party, with allegations in respect thereof, as in the foreclosure of other liens.

For a full discussion of the procedure as to parties, reference is had to the first chapter of this book. There will be found the law and procedure connected with the issuance and service of summons in the action, how defendants may voluntarily enter their appearance, how service of summons is made on residents of the county and nonresident of the

2 Giddings v. Barney, 31 0. S. (Ohio), 804.

81 Kinkead's Code Pleading, Sec. €6.

county who are residents of the State, how service is had on nonresidents of the State by publication, and by copy of the petition, how infants are served with summons and are defended by guardian ad litem, appointed by the court, and the conduct of such defense, how insane persons are defended. by trustees appointed by the court, and how all the steps must be taken to give the court power to hear and determine the rights of the parties to the action.

In the chapter herein on sale of real estate under an execution, there will be found a full statement of the sale of real estate by an order of sale and under the writ venditioni exponas, and also the law as to appraisement and also all of the procedure from the time of the order of sale to the delivery of the deed to the purchaser.

Sec. 1055. Procedure-Necessary parties to the action.

In a suit to foreclose a mortgage the heir of an intestate is not a necessary party and is concluded by a decree of sale against the administrator. One having a lien on the real estate sought to be foreclosed and is not made a party, may be made a party, or may, by cross-petition, ask to have his lien foreclosed."

Sec. 1056. The rights of purchaser of real estate during fore

closure of the mortgage.

In cases of real estate covered by mortgage, during its foreclosure the action may continue in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action."

4 McClung v. Cullison, 15 Okla. 402, 82 Pac. 494.

5 Blanshard v. Schwartz, 7 Okla. 23, 54 Pac. 303. When the mortgagor has conveyed his interest he

is not necessarily a party. Jones v. Lapham, 15 Kan. 540.

• Gilett v. Romig, 17 Okla. 324, 87 Pa. 325.