Sec. 1057. The law and procedure in foreclosure of a mortgage when one, not a party to the action, assumes it and agrees to pay it.

The law is that one who, in the deed conveying the real estate to him, assumes a real estate mortgage, and agrees to pay it, becomes the principal debtor and his grantor be comes surety, and the rule is that where successive grantees assume the mortgage debt, the last grantee assuming the debt is the principal debtor, and each successive grantee is a surety. It is a rule of law that where the purchaser of real estate takes it encumbered with a mortgage, and an abatement is made in the consideration on account of the mortgage, the law will imply a promise on the part of the purchaser to pay the mortgage debt.' The agreement may be enforced by the last purchaser against each previous one, whatever agreement he may have to and with the latter. The law will imply an agreement. And the agreement, though made orally, can be enforced. Where the action is against several grantees who have assumed the mortgage and agreed to pay it, there is but one cause of action, and all of them may be set forth in one petition without being separately stated and numbered.10

8

It has been held further that a deed which in terms provides that the grantee is to assume a certain incumbrance on the premises, makes a contract in writing by said grantee to pay the incumbrance, upon which contract the holder of the incumbrance may proceed directly against the grantee to recover.11

7 Thompson v. Thompson, 4 O. S. (Ohio), 333.

8 Emmet v. Brophy, 42 O. S. 82. 9 Society v. Haines, 47 O. S. 424. As to agreements to assume mortgages, see Brewer v. Maurer, 38 O. S. 543; Poe v. Dixon, 66 O. S. 124; Barker v. Camp, 71 Am. St. Rep. 186; Ordway v. Downer, 51 Pac.

1,047; Thompson v. Chessman, 48 Pac. 477; Stanton v. Kendrick, 45 N. E. 19.

10 Pomeroy's Code Remedies, Sec. 459; 1 Kinkead's Code Pleading, Sec. 584.

11 Schumaker v. Sibert, 18 Kan. 104.

Sec. 1058. The indorsement on the summons in the action to foreclose a mortgage.

The statute of this State which provides that the summons shall be directed to the sheriff of the county and command him to notify the defendant or defendants, named therein, that he or they have been sued, and must answer the petition filed by the plaintiff, giving his name, at a time stated therein, or the petition will be taken as true and judgment rendered accordingly; and where the action is on contract for the recovery of money only, there shall be indorsed on the writ the amount, to be furnished in the praecipe, for which, with interest, judgment will be taken, if the defendant fail to answer. If the defendant fail to appear, judgment shall not be rendered for a larger amount and the costs,"-does not require the summons in a foreclosure suit, where personal service has been had, to advise the defendant of the nature of the action against him, and the kind of judgment that will be rendered, nor is it necessary, the action not being for the recovery of money only, to indorse on the writ the amount for which, with interest, judgment will be taken if the defendant fail to answer.12

Sec. 1059. The affidavit for service by publication.

In an action to foreclose a mortgage on real estate, service may be made upon a defendant not residing within the State, by publication, but this does not waive the statutory affidavit to be filed in the action, showing the defendant to be served, a nonresident of the State. This filing of the affidavit is jurisdictional, and, unless it be filed in accordance with the terms of the statute, all subsequent proceedings of the court relative thereto are void.18 And this fatal defect cannot be cured by amendment.1

12 Horton v. Haines, 23 Okla. 878, 102 Pac. 121.

18 Shields v. Miller, 9 Kan. 390.

14 Hammerslough v. Hackett, 30 Kan. 51, 1 Pac. 41.

Sec. 1060. Personal judgment in foreclosure-May order payment of costs and attorney fees in the action-Duty of sheriff when tracts lie in different counties-No pledge of real estate can be foreclosed except by order of court.

In an action to enforce a mortgage, a deed of trust, or other lien or charge, a personal judgment or judgments shall be rendered for the amount or amounts due, as well to the plaintiff as to other parties to the action having liens on the mortgaged premises by mortgage or otherwise, with interest thereon, and for sale of the property charged and the application of the proceeds, or such application may be reserved for the further order of the court, and the court is required to tax the costs, attorney's fees and expenses which may accrue in the action, and apportion the same among the parties according to their respective interests, to be collected on the order of sale or sales issued thereon, and when the same mortgage embraces separate tracts of land situated in two or more counties, the sheriff of each county must make sale of the lands situated in the county of which he is sheriff. No real estate will be permitted to be sold for the payment of any money or the performance of any contract, or agreement in writing, in security for which it may have been pledged or assigned, except in pursuance of a judgment of a court of competent jurisdiction ordering such sale.15

15 Snyder, 5,921; Wilson, 4,588; Kansas, 4,848 (1901), identical. As to sales of mortgaged parcels of real estate disconnected, see Miller v. Trudgeon, 16 Okla. 337, 86 Pac. 523.

Fraud as a defense to a foreclosure suit may be shown at any time. Alton v. Staten, 19 Okla. 252, 91 Pac. 892; Balduff v. Groswold, 9 Okla. 438, 60 Pac. 223. In this state no title passes by mortgage

until after foreclosure. Gillett v. Romig, 17 Okla. 314, 87 Pac. 325. Finding not a judgment. Blumm v. Kramer, 14 Okla. 366, 79 Pac. 1,134. Rights of junior mortmagee, see Horr v. Herrington, 22 Okla. 590, 98 Pac. 443. Such personal judgment lien on all lands in county. Lisle v. Cheney, 13 Pac. 815.

Sec. 1061. Procedure after sale in foreclosure of mortgage. After a decree in foreclosure the execution for the sale must conform to the order of the court; 16 and the sale cannot be confirmed before the purchase price is paid to the sheriff.17

The order of the court in setting aside the confirmation of a sale in a foreclosure sale, was correctly made, where the order of sale was issued by the clerk of the court, and the sale was made within six months from the date of the judgment without appraisement.18

Sec. 1062. Who may mortgage real estate.

Male persons of the age of twenty-one years, female persons of the age of eighteen years, being otherwise qualified thereto, and corporations to the extent and in the manner authorized by law, owning real estate in the State of Oklahoma, may mortgage any interest therein. Provided, any persons of whatsoever age, who have been legally married, and who are otherwise qualified, may dispose of and make contracts relative to real estate acquired after marriage.19

Sec. 1063. No witnesses necessary to execution of real estate mortgage.

No subscribing witness is necessary to the validity of any mortgage affecting or relating to real estate. 20

Sec. 1064. Essential requisites for the validity of a mortgage. No mortgage relating to real estate will be valid until reduced to writing and subscribed by the mortgagors; and no mortgage, relating to the homestead exempt by law will

16 Price v. Citizens, 23 Okla. 723, 102 Pac. 800.

17 Price v. Citizens, 23 Okla. 723, 102 Pac. 800.

18 Hancock v. Youree, 25 Okla. 460, 106 Pac. $41.

19 Snyder, 1,184; act approved March 5, 1905.

20 Snyder, 1,185; Wilson, 878.

be valid unless in writing and subscribed by both husband and wife, where both are living and not divorced, except to the extent hereinafter provided.21

In an action to foreclose a mortgage not signed by the wife on the homestead, the husband having left it not intending to return, and the wife having intended to return, and the land in the meantime having been rented for a year, it was held that the mortgage at its inception was void. A mortgage was jointly executed by husband and wife on the homestead securing the note of the husband alone, the mortgage, however, recited the note to be the debt of the wife, held, that the court has power to correct such mortgage and decree foreclosure on the homestead.23

Sec. 1065. When husband or wife may mortgage homestead. Where the title to the homestead is in the husband and the wife voluntarily abandons him for a period of one year, or from any cause takes up her residence out of the State, he may mortgage it without being joined therein by her; and where the title to the homestead is in the wife, and the husband voluntarily abandons her, or from any cause takes up his residence out of the State for a period of one year, she may mortgage said homestead without being joined therein by him.24

Sec. 1066. When husband or wife concluded by mortgage of homestead.

If the husband make any mortgage relating to the homestead without being joined therein by his wife, he will be concluded thereby, and the same can only be avoided by the wife; and if the wife make any mortgage relating to the homestead without being joined therein by the husband, she will be concluded thereby, and the same can only be avoided by the husband; and in either case the husband or wife entitled to avoid any such mortgage will be concluded by a

21 Snyder, 1,187; Wilson, 880. 22 Hall v. Powell, 8 Okla. 276, 57 Pac. 168.

23 Bastin v. Schafer, 15 Okla. 607,

85 Pac. 349.

24 Snyder, 1,189; Wilson, 882.