
    Philadelphia Mortgage & Trust Company, appellee, v. John L. Gustus et al., appellants.
    Filed June 23, 1898.
    No. 9484.
    Foreclosure of Mortgage: Aprs at.: Redemption. If of an order of confirmation of a sale of real estate under a decree of foreclosure of a mortgag’e there has been perfected an appeal to this court-, also the execution and approval of the proper appeal bond, the mortgagor may redeem, from the sale at any time prior to the decision or decree of this court, by which the order of confirmation may become of force and opierative. -Ryan, 0., dissents.
    Appeal by defendants from confirmation of a judicial sale of mortgaged realty. Heard below before Hasting-s, J., in tbe district court of Fillmore county. Submitted to supreme court on motion of appellant John L. Gustus for leave to redeem tbe premises from tbe foreclosure sale.
    
      Motion sustained.
    
    
      Jdim Bar shy and Charles II. Sloan, for tbe motion.
    References in support of the motion for leave to redeem tbe property from tbe mortgage-foreclosure sale: 1 Am, 6 Eng. Ency. of Law, 425; Teaff v. Hewitt, 1 O. St. 511; Union P. R. Co. v. Ogilvy, 18 Neb. 638; Long v. Hitchcoclc, 3 O. 274; Wilcox v. Saunders, 4 Neb. 569; Parral v. Neligh, 7 Neb. 459; Warren v. Roben, 33 Néb. 380, 46 Neb. 115; Fuller v. Ryan, 34 Neb. 183; Porter ,v. Sherman County Banking Co., 40 Neb. 275; State Bank.v. Green, 10 Neb. 130.
    
      Conley & Fulton, contra:
    
    Appellant’s right to redeem ceased at tbe time tbe sale was confirmed. {Ewing v. Cook, 85 Tenn. 332; Cain-cron v. Adams, 31 Micb. 426; Lombard v. Gregory, 57 N. W. Rep. [Ia.] 621; Wilson v. Schneider; 17 N. E. Rep. [Ill.] 8; Eiceman v. Finch, 79 Ind. 511; Cummings v. Poltmger, 83 Ind. 294; Tedbont v. J affray, 74 Ia. 29; Waller v. Harris, 20 Wend. [N. Y.] 555; Hill v. Walker, 98 Am. Dec. [Tenn.] 465; Casey v. Gregory, 56 Am. Dec. [Ky.] 581; Smith v. 
      
      Rondan, 65 Am. Dec. [Cab] 475; Campan v. Godfrey, 100 Am. Dec. [Mich.] 133;Suitterlin v. Connecticut Mutual Life Ins. Co., 90 Ill. 483; Dobbins v. Jjuscii, 53 la. 304; Gates v. IJge, 59 N. W. Rep. [Minn.] 495; Hoover v. Johnson, 50 N. W. Rep. [Minn.] 475; McConkey v. Lamb, 33 N. W. Rep. [Ia.] 146.)
    An appeal does not vacate the judgment below. (Stale v. Dome, 35 Neb. 707; Nillv. Convparet, 16 Ind. 107; Briggs v. Shea, 50 N. W. Rep. [Minn.] 1037; Low v. Adams, 6 Oal. 277; Bank of North America v. Wheeler, 73 Am. Dec. [Conn.] 683; Planters Bank v. Calvit, 41 Am. Dec. [Miss.] 616; Scheible v. Slagle, 89 Ind. 323; Padgett v. State, 93 Ind. 396; State v. Young, 46 N. W. Rep. [Minn.] 204; Sage v. Harpcndmg, 49 Barb. [N. Y.] 166; Allen v. Mayor, 9 Ga. 286; Thompson v. Giffen, 6 S. W. Rep. [Tex.] 410; Bullion Beck & Champion Mining Go. v. Eureka Hill Alining Co., 13 Pac. Rep. [Utah] 174; Curtiss v. Beardsley, 15 Conn. 523; Sloan’s Appeal, 1 Root [Conn.] 151; 2 Ency. Pl.'& Pr. 324, 325.)
   Harrison, C. J.

In an action in the district court of Fillmore county to foreclose a mortgage against the real property or farm of John L. and Anna L. Gustus, in the due course of procedure, a decree for the relief demanded by the plaintiff, also some cross-petitioners, was granted and a sale of the land for tire satisfaction thereof was had, and on motion an -order of confirmation of the sale was entered in the district court. Objections to the confirmation were presented for the mortgagors, which on hearing were overruled, and from the order of confirmation an appeal has been perfected to this court for the mortgagors, inclusive of the proper appeal bond or undertaking.

During the pendency of the cause in this court John L. Gustus, of appellants, has applied to be allowed to redeem the premises from the sale. This application is opposed by the party who purchased. The provisions of our law relative to redemption of land from levy and sale, or sale under order of sale or decree of foreclosure of a mortgage, are contained in section 497» of the Code of Civil Procedure, the terms of which are as follows: “The owners of any real estate against which a decree of foreclosure has been rendered in any court of record, or any real estate levied upon to satisfy any judgment or decree of any kind, may redeem the same from the lien of such decree or levy at any time before the sale of the same-shall be confirmed by a court of competent jurisdiction by paying into court the amount of such decree or judgment, together with all interests and costs; and in case the said real estate has been, sold to any person not a.party plaintiff to the suit, the person so redeeming the same shall pay to said purchaser twelve per cent interest on the amount of the purchase price from the date of sale to the date of redemption, or deposit the same with the clerk of the court where the decree or judgment was rendered.” It will be noticed that the statute fixes the expiration of the time for redemption at the date of the confirmation of the sale, and for the purchaser herein it is contended that the time of the order made by the district court, must govern, and the applicant could not after such time, and cannot now, redeem. For the applicant it is urged that he may redeem at any time during his appeal. The settlement of the question of dispute rests, or depends, on a construction of a portion of the section of the Code we have quoted, in connection with the effect to be given the appeal from the order of the district court: The appeal >and bond, if they did not vacate the order of the district court, superseded. suspended, or rendered it inoperative. The purchaser acquired no rights and the applicant was not divested of his title to, and rights in, the land.. (Tootle v. White, 4 Neb. 401; State Bank of Nebraska, v. Green, 8 Neb. 297; State Bank v. Green, 10 Neb. 133.) All things remained as before the sale and subsequent order of the district court, and will so remain and exist until a decision in and by this court of the matter appealed. The order of tbe district court by the perfection of the appeal became ineffectual as to all other purposes for which it was made, and it certainly does not seem unfair to say that it was not of force or effect as against the right to redeem; nor does it appear unwarranted to construe the section of the Code in its reference to time to have indicated the date when the order shall become forceful and of full operation, which it cannot until this court has so decreed.

There were other arguments advanced, but we do not deem them of sufficient weight to lead to a conclusion other and different than the one we have just announced. It follows that the motion of the applicant will be sustained.

Motion sustained.  