Speckner v. Riebold

• Decision Date: 05 April 1974
• Docket Number: No. 9729,9729
• Citation: 1974 NMSC 29,86 N.M. 275,523 P.2d 10
• Parties: J. V. SPECKNER and Barbara J. Speckner, Plaintiffs-Appellees, v. Fred A. RIEBOLD and Bertha Riebold, Defendants-Appellants, Charles Wilson and Farmers Market and Supply Company, Inc., Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 10

523 P.2d 10

86 N.M. 275

J. V. SPECKNER and Barbara J. Speckner, Plaintiffs-Appellees, v. Fred A. RIEBOLD and Bertha Riebold, Defendants-Appellants Charles Wilson and Farmers Market and Supply Company, Inc. Defendants-Appellees.

No. 9729.

Supreme Court of New Mexico.

April 5, 1974.

C. N. Morris, Silver City, for defendants-appellants

Shantz, Dickson & Young, Robert J. Young, Silver City, for plaintiffs-appellees.

PER CURIAM:

Upon consideration of the motion for rehearing, the opinion heretofore filed is withdrawn and the following substituted therefor:

OPINION

STEPHENSON, Justice.

The appellees Speckners brought this civil suit in the District Court of Grant County to foreclose an equitable mortgage. Appellee Charles Wilson (Wilson) and Farmers Market and Supply Company, Inc., (Farmers), holders of judgment liens against the appellants which were junior to the lien of the Speckners, intervened. Wilson and Farmers sought, and ultimately obtained, foreclosure of their liens.

A default judgment was entered against appellants (defendants) foreclosing the mortgage and ordering the property to be sold. After the sale and during the hearing on the Commissioner's report of sale, appellants made an oral motion that they be allowed a homestead exemption in the proceeds of the sale remaining after the mortgage had been satisfied. That motion was denied. After the hearing, appellants filed a written claim of homestead exemption and objections to the proposed order approving the Commissioner's report of sale. The court entered an order and supplemental order confirming the sale while denying the claim of homestead exemption and objections to the order. Appellants have appealed these orders. We affirm.

In its decree of foreclosure, the court ordered the following:

'3. Kenneth L. Myers is hereby appointed Commissioner to make sale hereunder and after such sale he shall issue to the purchaser his Certificate of Sale, and after the time allowed by law for redemption has expired, he shall execute and deliver to the purchaser his deed to said property; * * *'

This decree differed somewhat from usual New Mexico practice. Our statutes make no provision for 'certificates of sale'. Normally the Commissioner or special master, upon approval and confirmation of the sale, executes a deed to the purchaser which is subject to defeasance if the property is redeemed by the mortgagor.

In any case, an order of sale was thereafter sought and granted; the property was sold; the Commissioner reported the sale and sought confirmation. The court then approved the Commissioner's report of sale. Moreover, the Commissioner was authorized and directed to execute and deliver a commissioner's deed, to be approved by the court and delivered to the purchaser.

As their first point for reversal, appellants argue that the district court lacked jurisdiction to modify the decree of foreclosure by ordering the Commissioner to execute and deliver a deed to the purchaser. Appellants base their contention on the terms of the decree which ordered the Commissioner to issue the purchaser a certificate of purchase. Since no appeal was taken from the foreclosure decree, appellants maintain that the decree becomes the law of the case and controls all subsequent proceedings, including the terms and conditions under which the mortgaged property was sold.

As nearly as we can make out, appellants claim to have been prejudiced in their rights regarding possession of the mortgaged property by the court's shifting from the certificate of sale procedure outlined in the decree of foreclosure to the arrangement whereby the Commissioner was to execute and deliver a deed to the purchaser upon the ultimate confirmation of the sale by the court. We will assume, without deciding, that the appellants' possessory rights were adversely affected by the changed mechanics of the sale. See Ulivarri v. Lovelace, 39 N.M. 36, 38 P.2d 1114 (1934); Gunby v. Doughton, 30 N.M. 144, 228 P. 603 (1924). Appellants do not question the court's power to provide for the delivery of the commissioner's deed, and hence the purchaser's possession, had it done so in the foreclosure decree. Although such delivery and possession are not specifically provided for by statute, they are authorized by necessary implication in various legislative acts. See, for example, §§ 24--2--17, 24--2--22 and especially § 36--12--1 subd. A(4), N.M.S.A.1953. This has been consistently recognized in our precedents. Ulivarri v. Lovelace, supra; Gunby v. Doughton, supra. Appellants only question the procedure by which the court arrived at its ultimate result concerning the delivery of the deed.

As we view it, there are two separate adjudications in a suit to foreclose a mortgage. The initial judgment operates to foreclose the mortgage. It declares the rights of the parties in the mortgaged premises. If no appeal is taken from that portion of the judgment, it becomes final unless modified under the provisions of § 21--9--1, N.M.S.A.1953, which allows trial courts control over their judgments for a period of thirty days.

The second part of the judgment directs that the mortgaged property be sold, and fixes the manner and terms of the sale. It is interlocutory. A district court has a continuing supervisory jurisdiction over mortgage foreclosure sales. It has certain discretionary powers to order such a sale on any terms or in any manner, subject only to statutory prohibitions and review for abuse of discretion. McCloskey v. Shortle, 41 N.M. 107, 64 P.2d 1294 (1937). We adopt the rule expressed in Best v. Patten, 158 Misc. 8, 285 N.Y.S. 76 (1936), rev'd on other grounds, In re Tharratts' Estate, Best v. Patten, 248 App.Div. 678, 290 N.Y.S. 550 (1936):

'A judgment of foreclosure is always final in part and interlocutory in part; final as to determining the rights of the plaintiff under the mortgage; interlocutory with respect to the sale; final as to the amounts to be paid to the mortgagor; interlocutory with respect to the legality of the proceedings upon the sale, the proper distribution of the proceeds thereof and as to any rights in the distribution of any surplus.'

That part of the decree of foreclosure that directs the manner and terms of the sale of the mortgaged property does not become a final judgment until the judicial confirmation of the sale, whereupon it becomes final. National Reserve Life Insurance Company v. Kemp, 184 Kan. 648, 339 P.2d 368 (1959); Moore v. Waltman's Adm'x, 288 Ky. 258, 156 S.W.2d 100 (1941); 79--83 Thirteenth Ave., Ltd. v. De Marco, 79 N.J.Super. 47, 190 A.2d 391 (1963); State v. Warden, 197 Okl. 97, 168 P.2d 1010 (1946); Betz v. Tower Sav. Bank, 185 Wash. 314, 55 P.2d 338 (1936).

We are aware of a line of New Mexico cases holding that an order confirming a judicial sale is not a final judgment, but is rather a final order affecting a substantial right made after the entry of judgment, appealable under Supreme Court Rule 5(2) (§ 21--2--1(5)(2), N.M.S.A.1953). Shortle v. McCloskey, 38 N.M. 548, 37 P.2d 800 (1934); Armijo v. Pettit, 34 N.M. 559, 286 P. 827 (1930); Cooper v. Brownfield, 33 N.M. 464, 269 P. 329 (1928). Such classifications were formerly important because of the differing times within which appeals had to be perfected. This situation no longer prevails, and in any case for present purposes it is unnecessary to arrive at any such classification. The point here is that provisions in the foreclosure decree concerning the sale were interlocutory. Otto-Johnson Merc. Co. v. Garcia, 24 N.M. 356, 174 P. 422 (1918). Being interlocutory, the portion of the decree in question remained under the control of the court at least until the confirming order. The court was free to disregard the interlocutory arrangements regarding sale contained in the decree. ...