Cuyler v. Lilly
Cuyler v. Lilly
Opinion of the Court
From a final order of confirmation of sale of real estate, made in pursuance of a decree in foreclosure proceedings, one of the defendants, the owner of the fee title to the real estate involved, appeals. The decree provided that in case the defendants found liable should fail to pay the amount adjudged to be due, within a specified time, “said premises be sold by the sheriff of said county according to law and that the proceeds thereof be applied to the payment of the amounts therein found due.” After the time had
The order of sale was but a means of calling the attention of the sheriff to the decree, and that the time for its execution had arrived, but really added nothing to the authority granted by the decree itself. A formal order of sale, issued by the clerk of the court in actions of the character now under consideration, has long been recognized in the practice as a proper method to be resorted to for the purpose of calling into action the powers of the sheriff in the execution of the decree of the court, and must now, we think, be held proper practice for the purpose mentioned. The formal order of sale issued by the clerk did nothing more than to call the sheriff’s attention to the decree of the court, and direct him to carry into execution its provisions. Whether this be regarded as mandatory, directory, as á suggestion, or mere surplusage, it did not militate against the authority of the sheriff to- sell the property and apply the proceeds to the payment of the debt found due, according to the terms of the decree. The point that the decree was not certified to in the order of sale is not well taken. Authority was derived from the original decree, and not from a copy thereof, however it might be authenticated. • The decree was. self-executing, and no formal order was required in order to give efficacy to it. Bristol Savings Bank v. Field, 57 Nebr., 670. In such a case the sheriff is the mere agent of the court, which is the
Affirmed.
Reference
- Full Case Name
- Cornelius C. Cuyler v. Benjamin S. Lilly, Impleaded with C. V. Gilchrist
- Status
- Published