
    Elisha P. Hulbert v. Henry McKay et al.
    
    
      Mortgage foreclosure—Reference as to surplus moneys—Master should require proof that no notice of claim filed—-Claimants to be summoned to attend—Neglect to file claim before order of reference—Effect—Claimant to swear to justice of claim—Proceedings ex parte— Orders for confirmation and payment of surplus made together—Otherwise in other cases.
    
    D. Burwell for defendant Benton.
   Application for surplus moneys arising from 8 sale of mortgaged premises, upon a decree under the Act of May 14, 1840. Decided in this case that upon a reference as to surplus moneys, in a mortgage foreclosure cause, under the 136th Rule, before the master proceeds thereon, he should require from the claimant affirmative evidence, by a certificate from the register with whom the report of sale was filed and the surplus deposited, that there is no notice of claim to such surplus annexed to the master’s report of the sale, and that no other notice of claim thereto had been filed in his j office previous to the entry of the order for a reference. That every such claimant, as well as every defendant who has entered his appearance in the cause, is entitled to a summons to attend the master on the reference, to be served in the manner prescribed in the rule. That the master should ascertain, by the proper evidence, that all proper parties have been duly notified, before he proceeds to make an ex parte report upon the order of reference. That the neglect of an incumbrancer to file his claim before the entry of the order of reference does not absolutely preclude him from making a claim to the surplus moneys on the reference; *for if he comes in before the master pending the reference, and files a claim with him duly verified, he has a right to be heard upon such claim, on terms. That upon such a reference, the master may require the claimant to swear to the justice of his claim, and the amount actually due, such a case coming within the spirit of the 105th Rule. That where it appears from the master’s report that the proceedings before him have been entirely exparte, so that no person has any right to except to the report, a previous order of course to confirm the report nisi will in future be dispensed with; and the order for the confirmation of the report, and for the payment of the surplus moneys to the parties entitled thereto, may be entered together. That in all other cases the order nisi to confirm the report must be entered; and that a certificate that such order has become absolute must be produced to the court when the application is made to pay over such surplus moneys; together with the certificate of the register or clerk with whom the money was deposited, showing the amount of the fund and the way in which it has been invested, and the claims, if any, which have been made thereon. Order directing the payment of the surplus moneys to Benton.  