Williaiiis(iiil;.w It twik Co I jaZSiDEIIOHf i nnd LawPtibtishfrs, 4t StateStreci. ROCJIKSTKR.X.Y THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW A TREATISE ON THE LAW AND PRACTICE OF Foreclosing Mortgages ON REAL PROPERTY, AND OF REMEDIES COLLATERAL THERETO, WITH FORMS BY CHARLES HASTINGS WILTSIE OF THE ROCHESTER BAR WITH ADDITIONAL CHAPTERS ON MORTGAGE REDEMPTIONS BY JAMES M. KERR OF THE NEW YORK BAR COMPLETELY REVISED BY HENRY CLIFFORD SPURR AND HIRAM MORRIS ROGERS OF THE NEW YORK BAR IN TWO VOLUMES VOL. 11. ROCHESTER, N. Y. WILLIAMSON LAW BOOK COMPANY 1913 T COPYRIGHT BY WILLIAMSON LAW BOOK COMPANY 1913 MORTGAGE FORECLOSURES. CHAPTER XXVIII. DELIVERING DEED— PASSING TITLE— OBTAINING POSSESSION. referee's deed — ESTATE CONVEYED — REQUISITES OF DEED — TITLE OF PUR- CHASER — FIXTURES — EMBLEMENTS — RENTS APPEAL AND REVERSAL — DELIV- ERY OF POSSESSION — WRIT OF ASSISTANCE — SUMMARY PROCEEDINGS. § 680. General principles. § 681. Provisions for letting purchaser into possession — Rents. § 682. Effect and force of referee's deed. § 683. Estate conveyed and interests passed by referee's deed. § 684. Same — Assessments — Condemnation and damage funds. § 685. Same — Assignee of mortgagee — Purchaser. § 686. Same — Bona fide purchaser. § 687. Same — Community property. § 688. Same — Error and fraud. § 689. Same — Emblements and ice. § 690. Same — General creditors of mortgagor. § 691. Same — Invalid mortgage. § 692. Same — Irregularities and defects. § 693. Same — Junior liens. § 694. Same — Licenses and trusts. § 695. Same — "More or less." § 696. Same — Mortgaged succession. § 697. Same — Obligations of purchasers. § 698. Same — Parol trusts. § 699. Same — Possession and ejectment. § 700. Same — Prior liens — Rights and liabilities. § 701. Same — Purchaser at irregular or invalid sale. § 702. Same— Rents— Title to. § 703. Same — Riparian mortgages. § 704. Same — Subrogation of purchaser. § 705. Same — 'i axes on land — Liability of purchaser for. 1001 1002 MORTGAGE FORECLOSURES. [§ 680 § 706. Same— Timber— Right to. § 707. Same— Usury— Bona fide purchaser. § 708. Execution and delivery of deed. § 709. Requisites of sheriff's or referee's deed. § 710. Error in description in mortgage— Correcting in deed. § 711. Variance of description in mortgage, decree and deed. § 712. Title of purchaser relates back to time of executing mortgage- Reserving easement. § 713. Time for redemption— Effect on title of purchaser. § 714. All fixtures pass to purchaser under referee's deed. § 715. Exceptions to above rule. § 716. All permanent improvements pass under referee's deed. § 717. All emblements pass under referee's deed. § 718. Right of purchaser to rents. § 719. Same — During period of redemption. § 720. Same — Accounting for rents and profits. § 721. Appeal and reversal — Effect on purchaser's title. § 722. Delivering possession of premises to purchaser. § 723. Possession obtained by summary process. § 724. Provisions of Code for obtaining possession. § 725. Writ of assistance — When granted. § 726. Writ of assistance — How obtained. § 727. Against whom possession delivered. § 728. Who entitled to writ of assistance. § 729. Writ of assistance improperly granted, § 730. Writ against tenants in possession. § 731. Writ of assistance not granted against holder of paramount title. § 732. Summary proceedings under New York Code. § 680. General principles. — Immediately after the sale is concluded, if the purchaser pays the amount bid '° and com- plies with the terms of sale, the officer who made the sale may execute and deliver to him a deed of the premises.''^^ It is not necessary to make a report of the sale, nor to have the report confirmed, before the deed is executed. It has been said that the referee's deed passes the title to the premises to the pur- ''* It has been said that a sheriff and has also purchased the claim is not liable for delivering a deed of such junior mortgagee, but not upon a sale under foreclosure with- the bid. Russell v. Grimes, 31 Neb. out collecting the price bid by a 784, 48 N. W. 905, aff'g on rehear- junior mortgagee, where a prior ing, 27 Neb. 812, 44 N. W. 107. mortgagee for the benefit of the "^^ Jackson v. Warren, 32 111. 331. mortgagor has purchased the decree § 680] DELIVERING DEED. 1003 chaser at the moment of its delivery, although the sale may not have been confirmed ; "^^ but a legal title cannot vest under a deed until its delivery.'^ It has been said that the property is at the risk of the purchaser from the date of the delivery of the deed by the officer of the court, and that he cannot repudiate the contract, although the sale may afterwards be set aside for irregular- ity.'* The person holding such a deed has been said to be prima facie the legal owner of the land described in it.'^ Ac- cording to the English doctrine, a purchase at a foreclosure sale is not complete until the report of the officer making such sale has been confirmed ; and the practice there is to withhold the deed until the entry of the final order of confirmation.'^ Where a deed is delivered before the sale is confirmed, the confirmation relates back to the date of the sale and gives effect to the deed from that time.'' While the decisions in this country are not uniform, it is thought that the better prac- tice is to report the sale and to have it confirmed before deliv- ering the deed. Yet in those states where time is allowed for redemption after the sale, it is the practice to delay the report until the deed has been executed and delivered.'* In such cases the mortgagor will waive all merely technical objections to the sale by failing to have it set aside before the time for redemption expires.'^ 72 For/ V. Burch, 6 Barb. (N. Y.) "^^ Jackson v. Warren, 32 111. 331. 60. See Mitchell v. Bartlett, 51 See Simerson v. Branch Bank at N. Y. 447, aff'g 52 Barb. (N. Y.) Decatur, 12 Ala. 205. 319; Fuller v. VanGeesen, 4 Hill ''^ Ex parte Minor, 11 Ves. 559. N. Y.) 171; Jones v. Burden, 20 'rt Lathrop v. Nelson, 4 D\\\. C. C. Ala. 382. See ante, chap, xxvii. 194. for the New York practice, which '8 Walker v. Schum, 42 111. 462. requires the delivery of the deed be See also Carroll v. Haigh, 108 111. fore the confirmation of the sale. App. 264. ''S Mitchell V. Bartlett, 51 N. Y. i^ Fergus v. Woodworth, 44 111. 447. 374; Walker v. Schum. 42 111. 462. ^^ J ones V. Burden, 20 Ala. 382. 1004 MORTGAGE FORECLOSURES. [§ 681 § 681. Provisions for letting purchaser into possession Rents. Where the decree in a foreclosure provides that the purchaser shall be let into possession upon producing the deed of the referee, or other officer making the sale, the pur- chaser does not acquire the title or the right the possession of the land, or to the rents and profits thereof, until the delivery of such deed;*" up to the time of such delivery the owner of the equity of redemption is entitled to the possession and to the rents and profits of the land." Where mortgaged premises are sold under a decree of fore- closure, the owner of the equity of redemption w-ill be en- titled to the rents, issues and profits of the premises until the purchaser becomes entitled to possession; and where the rent is payable between the day of sale and the time when the pur- chaser will be entitled to the possession, such rent will belong to the owner of the equity of redemption, and not to the pur- chaser at the sale.*^ But it has been held, where an assignee in bankruptcy of the mortgagor, by order of the bankrupt court, joined in the sale of the mortgaged premises under a power of sale contained in the mortgage, that the purchaser at such sale was entitled, as against the assignee in bankrupt- cy, to the rents and profits of the property sold for the period 8° The New York court of ap- ^^ Mitchell v. Bartlett, 51 N. Y. peals, in the case of Farmers' Loan 447, aff'g 52 Barb. 319; Strong v. and Trust Company v. Bankers & Dollner, 2 Sandf. (N. Y.) 444. See Merchants Telegraph Company, 119 post, §§ 713, 718. N. Y. 15, 23 N. E. 173, 28 N. Y. S. 82 Cheney v. Woodruff, 45 N. Y. R. 613, say that a judgment of fore- 98; Whalin v. White, 25 N. Y. 462 ; closure providing that the pur- Miner v. Beekman, 11 Abb. (N. Y.) chaser shall be entitled to the pos- Pr. N. S. 147, 42 How. (N. Y.) Pr. session on the production of his 33; Astor v. Turner, 11 Paige Ch. deed, and that the mortgagor and (N. Y.) 436, 43 Am. Dec. 766; their receiver shall join in the deed, Clason v. Corley, 5 Sandf. (N. Y.) necessarily implies that the referee 447; Whitney v. Allen, 21 Cal. 233. shall give to the purchaser a deed. But see McDevitt v. Sullivan, 8 Cal. although not containing any express 592. See also Peck v. Knicker- direction to that effect. backer Ice Co. 18 Hun (N. Y.) 183. § 682] DELIVERING DEED. 1005 intervening between the day of sale and the day of the con- confirmation thereof by the bankrupt court.®^ Where a decree of foreclosure directs the sale of the prem- ises, and that the purchaser at the sale be let into possession upon the delivery of the usual referee's deed, the purchaser will be entitled to a writ of assistance or other proper process of the court, requiring the delivery of the premises to him, as against all defendants who were served with the summons ; this rule also prevails as against a defendant who is not men- tioned in the decree by name, as well as against one whose name is not mentioned in the officer's deed.^* Where the sale is consummated by the delivery of the deed, it passes the entire estate held by the mortgagor at the date of the mortgage as against all defendants.*^ The right of the purchaser to the possession of the premises under his deed, will not be affected by the fact that, pending the action, the plaintifif executed to one of the defendants a conveyance of the whole of the prem- ises embraced in the decree.*^ § 682. Effect and force of referee's deed. — It is provid- ed by the Code," that a conveyance upon a sale made pur- suant to a final judgment in an action to foreclose a mortgage upon real property, vests in the purchaser the same estate only that w^ould have vested in the mortgagee, if the equity of re- demption had been foreclosed.** Such a conveyance is as valid as if it had been executed by the mortgagor and the mortgagee, and is an entire bar against each of them and against each party to the action who was duly summoned,*^ and against 83 Lathrop v. Nelson, 4 Dill. C. C. 87 n. Y. Code Civ. Proc. § 1632. 194. See also Gruiicr v. Rnffner, 134 ^^ Frisbie w. Fogarty,ZA C?i\.\\. App. Div. 837, 119 N. Y. Supp. ^^ Mongtomery v. Middlcmiss, 21 942. Cal. 103, 81 Am. Dec. 146; Belloe v. ^^ Lawrence v. Delano, 3 Sandf. Rogers, 9 Cal. 125. (N. Y.) 333. See Bishop v. Van ^6 Montgomery v. Middlemiss, 21 Winkle, 117 S. W. 345 (Ky.) Cal. 103, 81 Am. Dec. 146. See 89 !„ New York, although resti- Richards v. Smith, 88 Neb. 444, tution is allowed in a proper case 129 N. W. 983. to a defendant who has not ap- 1006 MORTGAGE FORECLOSURES. [§ 682 every person claiming from, through or under a party to the action, by title accruing after the filing of the notice of the pendency of the action,^" The sale of the mortgaged prem- ises and the confirmation thereof by the court, terminates the right of the owner of the equity of redemption to pay the debt and redeem the estate.^^ The provision of the Code, declaring a conveyance an "entire bar," refers to rights and interests in the equity of re- demption and not to interests paramount to the title of both the mortgagor and the mortgagee.^^ Thus, where parties hold- ing prior mortgages or liens are not made parties to a fore- closure, or if made parties and no purpose is indicated in the complaint to have the amount of their incumbrances ascer- tained and paid out of the proceeds of the sale, their prior liens will not be afTected.^^ And a purchaser at a legal tax sale of land, upon which there was a mortgage at the time of such sale, will not be affected by a subsequent foreclosure of such mortgage and by a sale of the mortgaged premises, unless he is made a party to the foreclosure.^* It is thought that the deed of a master in chancery, referee or other officer making the sale in mortgage foreclosure pro- ceedings, executed to a third person, at the request of the real purchaser, vests the title to such land in such third person and his grantee, as against the real purchaser and his heirs.^^ peared but who has been served by Smith, 9 N. Y. 502, 61 Am. Dec. publication, the title to property 706; Fryer v. Rockefeller, 4 Hun sold on foreclosure is not affected. (N. Y.) 800. See N. Y. Code Civ. N. Y. Code Civ. Proc. § 445. See Proc. § 1632. also Zarkowski v. Schroeder, 71 93 Bache v. Doscher, 67 N. Y. 429, App. Div. 526, 75 N. Y. Supp. 1021. affirming 41 N. Y. Supr. Ct. (9 J. 90 N. Y. Code Civ. Proc. § 1632. & S.) 150. See Stanislaus Water ^^ Brown v. Frost, 10 Paige Ch. Co. v. Bachman, 152 Cal. 716, 15 (N. Y.) 243, 247. L.R.A.(N.S.) 359, 93 Pac. 858. See 92 Rector v. Mack, 93 N. Y. 488, ante, chap. ix. 45 Am. Rep. 260. See Smith v. ^'^ Becker v. Howard, 66 N. Y. 5, Roberts, 91 N. Y. 470; Emigrant affirming 4 Hun (N. Y.) 359. Industrial Savings Bank v. Gold- ^^ Robertson v. Sayre, 53 Hun man, 75 N. Y. 127; Rathbone v. (N. Y.) 490, 25 N. Y. S. R. 449, 6 Hooney, 58 N. Y. 463; Lewis v. N. Y. Supp. 649. § 683] DELIVERING DEED. 1007 The supreme court of Missouri, in the case of Dodson v. Lomax,^^ say that the inclusion in a sheriff's deed upon fore- closure of a school mortgage, of a lot included in the mort- gage, but not sold, is a mistake which will be corrected in equity, where the sheriff was ignorant and the purchaser cog- nizant thereof. § 683. Estate conveyed and interests passed by referee's deed. — A purchaser at a mortgage foreclosure sale ac- quires all the title and interest of both the mortgagor and the mortgagee in and to the property .^'^ The court undertakes to The New Jersey Acts of i88i and 1882, Sup p. Rev. 489, 490, which subject mortgaged estates to con- ditions of redemption in the hands of purchasers at foreclosure sales, being unconstitutional as applied to antecedent mortgages, the purchaser at a sale under proceedings for the foreclosure of a mortgage made prior to these Acts took the estate of the mortgagee unaffected by the conditions of redemption created by those Acts, although at the fore- closure sale, enough was realized to pay the prior mortgage in full, and a small" sum upon a second mortgage, which was made after these Acts took effect. Champion V. Hinkle, 45 N. J. Eq. (18 Stew.) 162, 16 Atl. 70, 12 N. J. L. J. 87. 96 21 S. W. 25. ^T Rector v. Mack, 93 N. Y. 488, 45 Am. Rep. 260. See Westbrook V. Gleason, 79 N. Y. 23; Slattery v. Schwannecke, 44 Hun (N. Y.) 75; McMillan v. Richards, 9 Cal. 365, 70 Am. Dec. 655 ; Taylor v. Kearn, 68 111. 339; Hamilton v. State, 1 Ind. 128; Powesheik County v. Dcn- nison, 36 Iowa, 244, 14 Am. Rep. 521 ; Brown v. Tyler, 74 Mass. (8 Gray) 135, 69 Am. Dec. 239; Young V. Brand, 15 Neb. 601; Carter v. Walker, 2 Ohio St. 339. The pur- chaser at a foreclosure sale acquires the rights of the mortgagee, so far as he has any claim or interest in the premises for the security of his debt, and also so much of the equity of redemption as is not bound by the lien of a senior incumbrance. Watson V. Dundee Mortgage and Trust Investment Co. 12 Oreg. 474. See Sellwood v. Gray, 11 Oreg. 535, Ames V. Storer, 98 Wis. 372, 67 Am. St. Rep. 813, 74 N. W. 101; Leet v. Armbruster, 143 Cal. 663, 77 Pac. 653 ; Thompson V. Bender, 51 Tex. Civ. App. 81, 111 S. W. 170; Lone Jack Min- ing Co. V. Megginson, 82 Fed. 89. See also Alexander v. Grover, 190 Mass. 462, 77 N. E. 487; Gamble V. Caldwell, 98 Ala. 577, 12 So. 424 ; Martinez v. Lindsay, 91 Ala. 334, 8 So. 787; Bryan v. Pinney, 3 Ariz. 412, 31 Pac. 548; Clyne v. Benicia Wafer Co. 100 Cal. 310. 34 Pac. 714; Robinson v. Thornton, 102 Cal. 675. 34 Pac. 120; Thorpe v. Kerns, 83 Cal. 553, 20 Pac. 82, 23 Id. 691; Barnard v. Wilson, 74 Cal. 512, 16 1008 MORTGAGE FORECLOSURES. [§ 683 dispose of the interests of the parties to the suit in the land, Pac. 307; Myers v. Pierce, 86 Ga. 786, 12 S. E. 978; Diiesterberg v. Swartzel, 115 Ind. 180, 17 N. E. 155; Austin V. Bowman, 81 Iowa, 277, 46 N. W. 1111; Leavemvorth Lodge, No. 2, I. O. O. F. V. Byers, 54 Kan. 222i, 38 Pac. 261 ; Bailey v. Fanning Orphan School (Ky.) 14 S. W. 908, 12 Ky. L. Rep. 644; Land- reaux v. Louque, 43 La. An. 234, 9 So. 32; Herman v. Fanning, 151 Mass. 1, 23 N. E. 493; Chapin v. Freeland, 142 Mass. 383, 56 Am. Rep. 701, 8 N. E. 128; Mority V. St. Paul, 52 Minn. 409, 54 N. W 380; Jellison v. Holloran, 44 Minn 199, 46 N. W. 332; Atkinson v, Greaves, 70 Miss. 42, 11 So. 6i Lanier v. Mcintosh, 117 Mo. 508 38 Am. St. Rep. 676, 23 S. W. 787 Meier v. Meier, 105 Mo. 411, 16 S W. 223; Dodge v. Omaha & S. W R. Co. 20 Neb. 226, 29 N. W. 936 Henninger v. Herald, 53 N. J. Eq. (8 Dick.) 674, 29 Atl. 190; Cham- pion V. Hinkle, 45 N. J. Eq. (18 Stew.) 162, 16 Atl. 701; M click v. Pidcock, 44 N. J. Eq. (17 Stew.) 525, 15 Atl. 3, 6 Am. St. Rep. 901 ; Baldwin v. Howell, 45 N. J. Eq. (18 Stew.) 519, 15 Atl. 236; Mount v. Manhattan Co. 43 N. J. Eq. 25, 9 Atl. 114; Hiles v. Fisher, 144 N. Y. 306, 39 N. E. 2,Z7, 63 N. Y. S. R. 705, 43 Am. St. Rep. 762, 30 L.R.A. 305; Townsend v. Thomson, 139 N. Y. 152, 34 N. E. 871; Slattery v. Schwbunecker, 44 Hun (N. Y.) 75; Moggats v. Coe, 44 Hun (N. Y.) 31 ; Hartley v. Meyer, 2 Misc. 56, 20 N. Y. Supp. 351, 49 N. Y. S. R. 351 ; Banfort County Lumber Co. v. Dail, 111 N. C. 120, 15 S. E. 941, rehearing denied 112 N. C. 350, IS S. E. 350, 17 S. E. 587 ; Gill v. Wes- ton, 110 Pa. St. 312, 1 Atl. 921; Dyer V. Cranston Print Works Co. 17 R. I. 774, 24 Atl. 827; Ex parte Boyce, 41 S. C. 201, 19 S. E. 495; Givins v. Carroll, 40 S. C. 413, 42 Am. St. Rep. 889, 18 S. E. 1030; Kirber v. Moody, 84 Tex. 201, 19 S. W. 453 ; Ryan v. Ferguson, 3 Wash. 356, 28 Pac. 910; Osborn v. Glasscock, 39 W. Va. 749, 20 S. E. 702. The purchaser of the title of lands sold by virtue of an execu- tion issued upon a decree in an action for the foreclosure of a mortgage takes all the title which the mortgagor had and which was conveyed by such mortgage {Hen- ninger V. Herald, 51 N. J. Eq. (6 Dick.) 74, 29 Atl. 190), and of the wife who unites in the mortgage, subject to the rights of each to re- deem and to the right of the mort- gagor to retain possession for one year from the sale (Duesterberg v. Swartzel, 115 Ind. 180, 17 N. E. 155), and may recover damages for the breach of the covenant of war- ranty contained in the deed con- veying the property to the mort- gagor. Mygatt v. Coe, 44 Hun (N. Y.) 31. A purchaser of real property at sheriff's sale under fieri facias in foreclosure of a special mortgage can take nothing not described in the mortgage (Jones v. Lake, 43 La. An. 1024, 10 So. 204), and the title created by a deed expressly made subordinate to a prior trust deed is extinguished by a sale under the § 683] DELIVERING DEED. 1009 and the purchaser acquires those interests whatever they may latter deed. Meier v. Meier, 105 Mo. 411, 16 S. W. 223. A channel or pipe through which water has been furnished to a ranch, for more than five years, from the mains of a water com- pany, pursuant to an agreement to furnish the same in consideration of certain water rights, constitutes an appurtenance to the ranch; and the right to it, including the flow of water from the main, passes to a purchaser of the ranch upon a fore- closure sale. Clyne v. Benicia Wa- ter Co. 100 Cal. 310, 34 Pac. 714. A purchase from one against whom a remedy is barred by time entitles the purchaser to stand in as good a position as his vendor. Hence a purchaser at a foreclosure sale of the premises will be protect- ed by the statute. Chapin v. Free- land, 142 Mass. 383, 56 Am. Rep. 701, 8 N. E. 128. Acquires mortgage interest only where. — It has been said that one who purchases real property at a foreclosure sale, under an agree- ment that the title shall vest in him for the purpose of executing a mortgage to one paying part of the purchase money, and as security for the repayment of money advanced by himself, and to convey the prem- ises to another, acquires only a mortgage interest as against the latter. Van Vleck v. Enos, 88 Hun (N. Y.) 348, 34 N. Y. Supp. 754. An assignee of a mortgage of desert lands made after final proof but before patent, who has pur- chased the lands upon foreclosure sale, is entitled to file a petition to revive the original judgment on foreclosure, under Idaho Rev. Stat. Mortg. Vol. II.— 64. § 4498, providing for such action by the purchaser of property at a sheriff's sale, who fails to recover possession by reason of irregulari- ties or because the property was not subject to execution and sale, where the entry of the mortgagor is can- celled by the land office in proceed- ings begun before the sale. Cant- well v. McPherson, 2 Idaho, 1044, 29 Pac. 102. Cannot be limited to life estate by schedule of bankrupt. — It is thought that in those cases where the title conveyed by a trust deed of land, the grantor's whole inter- est in which was afterwards sold under a decree on a joint petition of the trustee and the mortgagor's assignee in bankruptcy, cannot be limited to a life estate by a state- ment in the grantor's schedule or in his assignee's original separate pe- tition, that his interest was that of a life estate. Alkinson v. Greaves, 70 Miss. 42, 11 So. 688. Fee in equity of redemption. — The purchaser of mortgaged prem- ises conveyed in trust, at a sale in a foreclosure suit to which the cestuis que trust were parties, ac- quires the estate of the mortgagor and also the fee in the equity of redemption. Melick v. Pidcock, 44 N. J. Eq. (17 Stew.) 525, 6 Am. St. Rep. 901, 15 Atl. 3. Mistake of clerk of court — Effect on purchaser's title and estate. — The title of a purchaser at a foreclosure sale of lands is not affected by a mistake of the clerk of the court (which was corrected on motion) in entering in the draft of the judg- ment on the order book the figures $200 instead of $2,000, for which 1010 MORTGAGE FORECLOSURES. [§ 683 be.®' And it has been said that a sheriff's sale of real estate, under a judgment recovered by a scire facias upon a mortgage, passes to the purchaser the title to the mortgaged premises discharged of all equities, — even of those of which the mort- gagee had no notice or knowledge. ®® the lands were actually sold. Viss- man v. Bryant, 14 Ky. L. Rep. 874, 21 S. W. 759. In New Jersey the title to lands acquired under foreclosure of a mortgage to the sinking fund com- missioners of the State of New Jersey is superior to that of a pur- chaser under a sale made under the "Martin Act" for taxes, some of which became a lien prior and oth- ers subsequent to the date of the mortgage, the tax sale being made to satisfy the combined taxes. Piigh V. Sinking Fund Comrs. 53 N. J. L. (24 Vr.) 629, 23 Atl. 270. One who has no title, legal or equitable, to a tract of land, cannot by acts in pais confirm the sale of any interest therein made under a decree in chancery ; and even a pur- chaser of the equity of redemption thereof, pending a suit by one claiming title through such sale, is not affected by the acts in pais of such stranger to the title. Brooks V. Kelly, 63 Miss. 616. And where a man who had taken the title to property in which he had only a one-third interest gave a purchase- money mortgage upon it, and after wards, upon payment of one-third of the price, obtained a release of an undivided one-third, his interest in that third becomes absolute upon subsequent foreclosure expressly excepting the part released to him. The purchaser at the sale obtains no interest in that third ; and deeds to him from the persons originally en- titled to the other two-thirds are of no effect. Central Bank v. Early, 10 Sadler (Pa.) 526, 14 Atl. 427. In a case where land was con- veyed to the trustee to secure debts, and afterwards a third party took a conveyance of the equity of redemp- tion, and paid off the debts, and then sold the land to a person who took possession. The first vendee then caused the trustee to sell the land under the terms of the deed in order to get the legal title out of him, and the court held that the purchaser at such sale with full notice of the facts, got no title, and no estoppel arose against the owner of the equity. Mayo v. Leggett, 96 N. C. 237, 1 S. E. 622. 38 Leech v. Hillsman, 8 Lea (Tenn.) 747; Zollman v. Moore, 21 Gratt. (Va.) 313; Tallman v. Ely, 6 Wis. 244; Gillett v. Eaton, 6 Wis. 30; Heinroth v. Frost, 250 111. 102, 95 N. E. 65; Watson v. Jones, 41 Fla. 241, 25 So. 678; Arterburn v. Beard. 86 Neb. 7Z3, 126 N. W. 379; Currier v. Tcske, 84 Neb. 60, 133 Am. St. Rep. 602, 120 N. W. 1015 ; Kerr V. McCrcary, 84 Neb. 315, 120 N. W. 1117; People's Trust Co. v. Tonkonogy, 144 App. Div. Z2>Z, 128 N. Y. Supp. 1055 ; Wimpfheimer v. Prudential Ins. Co. of America, 56 N. J. Eq. 585, 39 Atl. 916; Hart V. Bcardsley, 67 Neb. 145. 93 N. W. 423. See Bushey v. National State Bank of Camden, 72 N. J. Eq. 466, 66 Atl. 592. ^^Landell's Appeal 105 Pa. St. 152. A foreclosure deed to the mortgagee gives him the same es- 683] DELIVERING DEED. 1011 The purchaser takes the title of the mortgagor and the mortgagee as it existed at the time of the execution of the mortgage, subject to all its qualifications,^ because the vendee of mortgaged premises under a sheriff's deed stands upon the equities of the mortgagee.^ Easements used by the mortgagor pass under a sheriff's deed as an appurtenance.^ But a deed cannot pass a greater interest than that which is authorized by the judgment, although by its terms it may include prem- ises mentioned in the mortgage, but which were subsequently released by the mortgagee from the lien thereof.* If his title was a mere equity or a right to own the prop- erty upon the payment of the purchase price, such interest is all that can be transferred by the foreclosure.^ If the mort- gage was upon a lease for a term of years, the purchaser be- tate as the foreclosure of the equity of redemption, and is as effectual against the owner of the equity as if he executed such deed. Riiggles V. First Nat. Bank of Centreville, 43 Mich. 192. 1 Vroom V. Ditmas, 4 Paige Ch (N. Y.) 526, 531; McMillan v Richards, 9 Cal. 365, 70 Am. Dec 655; Taylor v. Kearn, 68 III. 339 Hamilton v. State, 1 Ind. 128; Powesheik County v. Dennison, 36 Iowa, 244, 14 Am. Rep. 521 ; Mars- ton V. MarstOH, 45 Me. 412; Haynes V. Wellington, 25 Me. 458; Brown V. Tyler, 7A Mass. (8 Gray) 135, 69 Am. Dec. 239; Ritger v. Parker, 62 Mass. (8 Cush.) 145, 54 .^.m. Dec. 744; Carter v. Walker,! Ohio St. 339; Frische v. Kramer. 16 Ohio, 125, 47 Am. Dec. 368; De- Haven V. Laudell, 31 Pa. St. 120; West Branch Bank v. Chester, 11 Pa. St. 282, 51 Am. Dec. 547 ; Hod- son V. Treat, 7 Wis. 263. See Reid V. Town of Long Lake, 44 Misc. 370, 89 N. Y. Supp. 993 ; Common- wealth Mortgage Co. v. De Waltoff, 135 App. Div. 33, 119 N. Y. Supp. 781 ; Gilchrist v. Foxen, 95 Wis. 428, 70 N. W. 585 ; Kilgour v. Scott. 101 Fed. 359. See also Sheridan v. Schimpf, 120 Ala. 475, 24 So. 940. But see New York Water Co. v. Crow. 110 App. Div. 32, 96 N. Y. Supp. 899. where the mortgage cov- ered after acquired property. 2 Berryhill v. Kirchner, 96 Pa. St. 489. ^Johnson, as trustee, etc. v. Sher- man County Irrigation, Water Power & Improvement Co. 71 Neb. 452, 98 N. W. 1096; Richmond v. Bennett, 205 Pa. 470. 55 Atl. 17; Stanislaus Water Co. v. Bachman, 152 Cal. 716, 15 L.R.A.(N.S.) 359, 93 Pac. 858. See also Dahlberg v. Haeberle, 71 X. J. Law, 514, 59 Atl. 92. '^ Laverty v. Moore, 32 Barb. (N. Y.) 347, affirmed 33 N. Y. 658. 5 Stewart v. Hutchinson, 29 How. (N. Y.) Pr. 181. 1012 MORTGAGE FORECLOSURES. [§ 683 comes the assignee of the lease.® If the property has been previously sold by the mortgagor upon contract, and his vendee is in possession, the purchaser will take the position of the mortgagor as to the vendee; and upon default in the payment of the money due upon the contract, he may turn him out of possession.' And where persons holding prior liens are not made parties to the action, or, if made parties, no purpose is indicated in the complaint to have their liens ascertained and paid out of the proceeds of the sale, their rights will not be cut off.' A purchaser under a foreclosure decree acquires no interest as against an owner of the fee who was not made a party,® and a commissioner's deed on a foreclosure sale cannot in- crease the rights originally granted by the mortgage ; nor can the owner of the equity of redemption and other parties to the foreclosure stipulate away the rights of the heirs or legal representatives of the deceased mortgagor.^" It is thought that a purchaser at a foreclosure sale is not fixed with constructive notice of an assignment of the equity of redemption in any of the mortgaged property by any of the successive holders of the mortgage, nor is he bound to ^Kearney v. Post, 1 Sandf. (N. See Watson v. Jones, 41 Fla. 241, Y.> 105. 25 So. 678; Western Iron Works v. 'C/mi^ V. A^'om, 31 Barb. (N. Y.) Montana Pulp & Paper Co. 30 511. See Smith v. Roberts, 91 N. Mont. 550, 77 Pac. 413. See ante, Y. 470; Emigrant Industrial Sav- chap. ix. ings Bank v. Goldman, 75 N. Y. ^ Fowler v. Lilly, 122 Ind. 279, 23 127; Rathbone v. Hooney, 58 N. Y. N. E. 767; Watts v. Julian, 122 Ind. 463 ; Lewis v. Smith, 9 N. Y. 502, 124, 23 N. E. 698. 61 Am. Dec. 706; Dwight v. Phil- But the purchaser in that event lips, 48 Barb. (N. Y.) 116. becomes an assignee of the lien and 8 Emigrant Industrial Savings may foreclose it. Stough v. Badger Bank V. Goldman, 75 N. Y. 127; Lumber Co. 70 Kan. 713, 79 Pac. Bache v. Doscher, 67 N. Y. 429, 7Z7. affirming 41 N. Y. Supr. Ct. (9 ^^ Morgan v. Meuth, 60 Mich. J. & S.) 150; Becker v. Howard, 66 238, 27 N. W. 509. N. Y. 5, affirming 4 Hun (N. Y.) 359; Walsh v. Riitger's Fire Insur- ance Co. 13 Abb. (N. Y.) Pr. 33. § 683] DELIVERING DEED. 1013 inquire in regard to it; but all that he is required to do is to ascertain from the record or by inquiring of the mortgagor whether the debt has been paid or the mortgage released. -^^ A mortgagor of lands in fee, who had previously conveyed a small piece of the land upon condition that the grantee would erect and maintain a well, with tank, and do other specified things, is estopped, as against the mortgagee, from denying that the latter, who purchased at the foreclosure, is entitled to the whole lot, where, after the well and tank were construct- ed, it was closed and the tank removed, and the grantee ceased to occupy the land conveyed. ^^ Neither can an owner of land on both sides of a stream, subject to a mortgage upon the land upon one side of the stream, which includes the right to half the water, by raising the dam and diverting the whole of the water to uses upon the other side, and thus prevent a pur- chaser upon a sale under the foreclosure of the mortgage from acquiring a right to half the water." From what has been said above it follows as a corollary that the purchaser at a fore- closure sale of the undivided interest of a tenant in common in lands takes an undivided interest in every part of the prem- ises, and does not become sole owner of any definite subdivi- sion thereof.^* In short, the purchaser at a mortgage fore- closure sale becomes the absolute owner of the premises in fee simple, where the mortgagor had such an estate in the property. A great many questions relative to the rights and interests of such purchaser have been discussed and decided by the courts in recent years. For convenience of collation they have been divided into groups, and those groups here fol- low arranged in as nearly alphabetical order as is practicable. ^^ Beaufort County Lumber Co. v. ^^ Trope v. Kerns, 83 Cal. 553, Bail, 112 N. C. 941, 17 S. E. 527, 20 Pac. 82, 23 Pac. 691. 112 N. C. 350, denying rehearing in ^^ Dyer v. Cranston Print Works 111 N. C. 120, 15 S. E. 941. See Co. 17 R. I. 774, 24 Atl. 827. also Pinney v. Merchants' National '^'^ Myers v. Pierce, 86 Ga. 786, 12 Bank, 71 Ohio St. 173, 72 N. E. ' S. E. 978. 1014 MORTGAGE FORECLOSURES. [§ 684 § 684. Same — Assessments — Condemnation and dam- age funds. — Where there has been a payment, under a decree by a referee in foreclosure, of a local assessment which is an apparent lien upon the mortgaged premises, out of the proceeds of the mortgage sale, is equivalent to a payment by the owner of the equity of redemption, and will entitle such owner, on the subsequent vacating of the assessment, to recover from the municipality the amount so paid.*^ It has been said that the foreclosure of mortgages upon land does not pass the title to a fund arising from a prior condem- nation of a water right appurtenant to the land, or change the manner of distribution.^® But it seems that a mortgagee who purchases the mortgaged premises at foreclosure sale for the full amount of the mortgage debt is entitled, after the expiration of the time for redemption, without redemption having been made, to the damages awarded for a street im- provement, the assessment for which was made after the foreclosure sale, although the proceedings were instituted before the foreclosure." § 685. Same — Assignee of mortgagee — Purchaser. — It is thought that a purchaser in good faith and for value from a mortgagee who, upon an attempted foreclosure and sale bid in the property, becomes the assignee of the mortgage, where the decree was a nullity, and his possession is that of a mortgagee in possession after condition broken, which he is entitled to retain as against heirs of the mortgagor or their 15 Brehm v. Mayor, etc. New condemnation proceedings is super- York, 104 N. Y. 186, 10 N. E. 158. ior to the rights of the grantee ^^ Re Rochester, 136 N. Y. 83, of the purchaser at a sale under 32 N. E. 702, 19 L.R.A. 161. 49 N. a subsequent foreclosure of a mort- Y. S. R. 86. See Miller v. Board of gage on the property. Gates v. De Miss. Levee Com'rs. 78 Miss. 201. La Mare. 49 N. Y. S. R. 775. 20 N. 28 So. 834; Matter of Wasliington Y. Supp. 837. Ave. 34 Misc. 655, 70 N. Y. Supp. ^i Moritz v. St. Paul, 52 Minn 599. 409, 54 X. W. 370. Attorney's lien upon an award in § 686] DELIVERING DEED. 1015 grantee.^' But it would seem that the assignees of a purchaser at a mortgage sale void as being made under a judgment obtained by the mortgagee against himself as ad- ministrator of the mortgagor, though not chargeable by the identity of the name with notice that the mortgagee and administrator were the same person, and of the consequent in- validity of the judgment, acquire no title as against the heirs of the mortgagor, in the absence of any act or failure on the part of the latter creating an estoppel. ^^ Where a mortgagee buys the land at the sale, having pre- viously quit-claimed his interest to a third person, he becomes trustee of the land for his grantee.^" § 686. Same — Bona fide purchaser. — It has been said that the title of a bona fide purchaser for value without no- tice on a mortgage sale is not affected by the fact that the holder of the mortgage had prevented a tender bv refusing to accept payment, except on conditions which he had no right to make.^^ And the possession of a bona fide grantee of a purchaser at a void foreclosure sale having continued after the expiration of the time of redemption, his title becomes absolute; and his subsequent failure to keep up his improve- ments, or to cultivate or occupy the premises, will not affect his right to the land or the possession. ^^ It is held by the supreme judicial court of Massuchusetts, in Hermans v. Fanning.^^ that in a case where the insurance on mortgaged premises is paid to the mortgagee on receipts from him and also from the owner of the equity of redemption, who is induced to sign a receipt by an assignment of the '^^ Bryau v. Piitney. 3 Ariz. 412, ^'^ Holland v. Citizens' Sav. Bank, 31 Pac. 548. See Jones v. Standi- 16 R. I. 734. 19 Atl. 654, 8 L.R.A. ferd, 69 Kan. 513, 77 Pac. 271. 553. ^^ Bryan v. Pinney. 3 Ariz. 412, 31 ^^Jellison v. Holloran, 44 Minn. Pac. 548. 199, 46 N. W. 332. ^^ Gottlieb V. City of New York. 23 151 Mass. 1, 23 N. E. 493. 128 App. Div. 148, 112 X. Y. Supp. 545. 1016 MORTGAGE FORECLOSURES. [§ 687 mortgage to his brother, he himself paying the balance due on the mortgage, and his brother subsequently assigns the mortgage to one who enters and sells the lands under a power of sale in the mortgage, — a bona fide purchaser at the sale acquires a good title as against a purchaser from the owner of the equity of redemption. A purchaser at a foreclosure sale who has not parted with consideration is not deemed a bona fide purchaser.^* The doc- trine of caz'eat emptor applies to a foreclosure sale.^^ § 687. Same — Community property. — The doctrine of community property, we have already seen,^^ prevails in many of the states, carved out of the territory acquired by the "Louisiana Purchase," in which the civil law. instead of the common law, forms the basis of the judicial system. It is said that a sale of community property upon foreclosure of a special mortgage held by a community creditor, evidenced by an authentic act importing a confession of judgment and con- taining the non-alienation clause, will convey a valid title to a purchaser, although foreclosed in executory proceedings against the surviving husband alone.^' And in Washington, upon a sale, under a decree of the court, of mortgaged com- munity property under the statute,^^ the community title is sold; and the execution of a deed purporting to convey only the right of the deceased member of the community therein ^^ Richardson v. Stephens, 122 ton v. Taylor, 35 Neb. 466, 18 Ala. 301, 25 So. 39. For other cases L.R.A. 88, 37 Am. St. Rep. 441, 53 where the purchaser was held not N. W. 418; Louisville & Nashville to be a bona fide purchaser, see R. R. Co. v. Illinois Central R. R. Ellis V. Allen, 99 Wis. 598, 75 N. Co. 174 111. 448, 51 N. E. 824; Craw- W. 949; Connolley's Ex'r v. Beckett, ford v. Foreman, 127 Iowa, 661, 103 105 S. W. 446 (Ky.) ; Gewin v. N. W. 1000. See Cooper v. Ryan, Shields, 167 Ala. 593, 52 So. 887. 73 Ark. 37, 83 S. W. 328. 25 Watson V. Jones, 41 Fla. 241, 26 See ante, § 628. 25 So. 678; Fidelity Insurance, ^"^ Landrcaux v. Lougiie, 43 La. Trust & Safe-Deposit Co. v. Roa- Ann. 234, 9 So. 32. noke Iron Co. 84 Fed. 744; Nor- 28 Wash. Code, 1881, § 1524. 689] DELIVERING DEED. 1017 will not deprive the purchaser of his right to the entire prem- ises.^^ § 688. Same — Error and fraud. — The general rule is that a purchaser in good faith and for value of land at a foreclosure sale, cannot be divested of title, even though gross error and fraud by others, intervened in the procurement of the decree and sale.^° § 689. Same — Emblements and ice. — A purchaser at a foreclosure sale acquiring the title in fee simple, is entitled to 29 Ryan v. Ferguson, 3 Wash. 356, 28 Pac. 910. 30 Swift V. Yanaway, 153 111. 197, 38 N. E. 580. In this case it was insisted that there was collusion and fraud between Henderson, the then guardian of the plaintiffs in error, and one Gilfillin, in procur- ing the decree of foreclosure. The court say: "It is a fundamental doctrine that fraud will not be presumed, but must be proved. True, fraud can rarely be established by direct evi- dence, and must, ordinarily be proved by facts and circumstances shown which raise the inference that fraud was perpetrated * * * The bare fact that the record dis- closes that, by agreement of the guardian and Gilfillin, the decree was to be rendered for $500, to be paid in installments of $300 and $200, is, in view of the facts shown, insufficient to raise the inference that it was fraudulently done. If entitled to the decree foreclosing the deed as a mortgage, to which the court found he was entitled, no reason is apparent why Gilfillin should not have obtained a decree for the full amount of his allow- ance by the county court of Cum- berland county. That he consented to take a decree for less rather rebuts than raises an inference that he sought to overreach, or obtain an unconscionable advantage, in that proceeding. It is sufficient to say, upon the whole record, it does not appear that fraud, such as ought, under the rules of chancery practice, to impeach or set aside the decree, is shown. More especially must this be held in view of the fact that the defendant in error, Yanaway, so far as appears by this record, was a bona fide purchaser at the sale subsequently made under such decree. There is, we think, a total failure to connect him with any fraud or collusion in the pro- curement of the decree, or in mak- ing the sale thereunder. Yanaway being, as we hold, a purchaser of said eighty-acre tract of land, in good faith and for value, cannot be disturbed, or divested of his title, even though gross error and fraud by others, intervened in the pro- curement of the decree and sale, Sibert v. Throop, 77 111. 43; Wad- hams V. Gay, Th 111. 415." 1018 MORTGAGE FORECLOSURES. [§ 690 have and receive all the rights and privileges going therewith. This includes, of course, a right to the emblements ; '^ but where crops and emblements have been severed before the com- pletion of the sale and delivery of the deed, they cease to be a part of the realty and do not pass therewith. ^'^ Ice upon ponds and streams is in the nature of an emble- ment.^^ So long as it remains in its original state and at- tached to the land at the banks of the stream or pond, it is real property^* and passes by a conveyance of the land; but when the ice has been severed and harvested, it becomes per- sonal property, and does not pass with the land. Thus it has been said that a mortgagee who becomes the purchaser on fore- closure is not entitled to ice cut by a lessee of the mortgagor before foreclosure, although the house in which it was stored, the land on which the house was situated and the pond from which the ice was cut, were all sold under the mortgage.^* Hence a mortgagee and purchaser on foreclosure sale of ice houses and of the right to cut ice from a pond does not ac- quire title to ice cut and stored in the ice houses by the lessee of the mortgagor prior to the foreclosure sale.^® § 690. Same — General creditors of Mortgagor. — The general rule is that assets derived from the sale of mortgaged premises on the foreclosure of the mortgage become, as re- gards creditors, the substitute for the property sold, and the claims of creditors are transferred by the sale to the funds derived from such sales, and the purchaser takes the land freed from the claims of general creditors.^' Such sale will 3^ See post, § 717, also 1 Kerr on to the first comer each season. See Real Prop. § 50. 1 Kerr on Real Prop. § 74. 32 See 1 Kerr on Real Prop. §§ 3^ See 1 Kerr on Real Prop. § 68. 71-73. 35 Gregory v. Rosenkrans, 72 Wis. 33 The "great ponds" of Massa- 220, 1 L.R.A. 176. 39 N. W. 378. chusetts and other states are an ex- ^^ Gregory v. Rosenkraus, 78 Wis. ception to the rule. The ice upon 451. 47 N. W. 832. these belongs by custom and statute 37 yuas v. Page, 106 N. Y. 439. § 691] DELIVERING DEED. 1019 prevent a subsequent levy of attachment against the debtor from having any effect, although the deed is not given until subsequent to the attachment.'® Consequently the purchaser at a mortgage sale is not bound by an action against the mort- gagor involving the title to the premise or by notice of its pendency, where he is not seasonably brought in as a party, and the mortgagees are not made parties until after the fore- closure.'^ Sale on the foreclosure of a mortgage which is a prior and paramount lien will pass the title to the land free from a subse- quent judgment lien, unless the land was redeemed from the foreclosure sale.*" And it has been said that purchasers claiming title under the assignee of a mortgage executed prior to a judgment against the mortgagor, and who were bona fide purchasers for value without notice other than the judgment and execution thereon, hold by a title superior to that of a purchaser at a sale upon execution under the subsequent judg- ment.*^ § 691. Same — Invalid mortgage. — A mortgage which is invalid for any reason, carries with it no interest or rights, and a purchaser on foreclosure will acquire no title to the land sold.*^ Thus it has been said that on the foreclosure of a mortgage given by a married woman and her husband upon property devised to her, to her sole and separate use free from the interference or control of her husband, and to her heirs and assigns forever, with no further provision in regard to alienation by her, the purchaser gets no title thereunder, since the mortgage is void, and a judgment thereon is also void.*' 13 N. E. 743. See Chicago. R. I. & « Martinez v. Lindsay. 91 Ala. P. R. Co. V. Howard, 74 U. S. (7 334, 8 So. 787. Wall.) 392, 19 L. ed. 117. ^^ Richardson v. Stephens, 122 38 Robinson v. Thornton. 102 Cal. Ala. 301, 25 So. 39. See Way v. 675, 34 Pac. 120. Scott, 118 Iowa, 197, 91 N. W. 1034. 39 Hokanson v. Gudenson, 54 *3 Hays V. Leonard, 10 Pa. Co. Minn 499. 40 Am. St. Rep. 334, 56 Ct. 648. N. W. 172. ^^ Austin V. Boivnian, 81 Iowa, 277, 46 X. W. nil. 1020 MORTGAGE FORECLOSURES. [§ 692 And where a widow gives a mortgage of the fee upon a lot in which she held a life estate only under her husband's will, al- though for thirty years she held it under the mistaken impres- sion that she owned the fee, a sale conveys no title to the pur- chaser at a foreclosure sale made shortly after her death.** But in those states in which the civil law doctrine of com- munity property prevails,*^ where a widow gives a deed of trust upon lands purchased by the husband during their mar- riage v/ith his separate means, to secure moneys advanced to her, containing nothing to show that they were not commun- ity property, and without notice that the lands were the sep- arate estate of the husband, upon sale under the trust deed the purchaser acquires a superior title to half the land as against the heirs of the husband.*^ § 692. Same — Irregularities and defects. — Irregulari- ties and defects in the execution of the mortgage or trust deed, in the obtaining of a decree and order of sale, and in selling the property thereunder, may or may not prevent the purchaser at such sale from taking title. All depends upon the character and seriousness of the irregularities and defects. It is thought that a purchaser at a foreclosure sale takes title notwithstanding defects in proceedings upon which the judg- ment was obtained, so long as the judgment is not in itself void.*' But land included in the judgment which was not set forth in the complaint, will not pass to the purchaser on the 44 Mixter v. Woodcock, 154 Mass. Hamilton, 195 Pa. St. 559, 46 Atl. 535, 28 N. E. 907. 109; Kiernan v. Jersey City, 80 45 See ante, §§ 628, 687. N. J. L. (51 Vroom) 273, 78 Atl. ^^Kirby v. Moody, 84 Tex. 201, 228; McDonald v. Hoffman, 153 N. 19 S. W. 453. C. 254, 69 S. E. 49 ; Lander v. ^''Bailey v. Fanning Orphan Meserole, 133 N. Y. Supp. 340; School, 12 Ky. L. Rep. 644, 14 S. Karcher v. Cans, 13 S. D. 383, 79 W. 908 ; Sproule, as trustee, etc v. Am. St. Rep. 893, 83 N. W. 431 ; Davics, 171 N. Y. 277, 63 N. E. Gooding v. Ransom, 63 Neb. 78, 1106; Goerz v. Barstow, 148 Fed. 88 N. W. 169. 562, 78 C. C. A. 248. See Elder v. § 693] DELIVERING DEED. 1021 foreclosure sale.*® Failure to determine all the issues involved in the foreclosure action will not invalidate the sale thereun- der.'^ It has been said that although a sale of mortgaged prem- ises under a power of sale contained therein, in the absence of the mortgagee, is irregular, the legal title passes to the pur- chaser by the deed given to him.^° And in those cases where the mortgage is invalid because of the failure of the mort- gagee, a foreign corporation, to comply with the State laws in respect to having a place of business in the State, with an authorized agent, this will not invalidate the title under a sale made under the power contained in the mortgage, for the reason that the contract evidenced by the mortgage is fully executed. ^^ The supreme court of Minnesota, in the case of Russell v. H. C. Akeley Lumber Company,^^ say that a purchaser at a defective foreclosure sale, or his assigns, who goes into pos- session of the premises with the assent of the mortgagor, or his successors, will be deemed a mortgagee in possession, and if he remains in possesion until the right of redemption is barred, he becomes vested with the title. § 693. Same — Junior liens. — In those cases where the proceedings are regular, and junior lienors are duly made parties to the action, the purchaser takes the realty freed from the lien of the junior incumbrancers,^^ subject to the « See Clapp v. McCabe, 155 N. Ind. 180, 17 N. E. 155 ; Huzsey v. Y. 525, 50 N. E. 274. Heffernan, 143 Mass. 232, 9 N. E. ^^ Brown v. Johnson, 58 Neb. 570; Heinss v. Henry, 127 La. 770, 222, 78 N. W. 515. 54 So. 24. See Hitchler v. Citisens' ^^ Lanier v. Mcintosh, 117 Mo. Bank, 63 Miss. 403; Stewart v. 508, 38 Am. St. Rep. 676, 23 S. W. Wheeling & L. E. R. Co. 53 Ohio 787. St. 151, 41 N. E. 247, 34 Ohio L. J. ^"^ Gamble v. Caldwell, 98 Ala. 56, 2 Ohio Leg. News, 659, 29 577, 12 So. 424. L.R.A. 438; Englchart-Hitchcock 62 45 Minn. 376, 48 N. W. 3. Co. v. Central Investment Co. 136 ^ Diiesterberg v. Swartzel, 115 Ga. 564, 71 S. E. 787. See also 1022 MORTGAGE FORECLOSURES. [§ 693 right to redeem,^* and in some states even that privilege is de- nied. ^^ And after a valid sale under a senior mortgage a junior mortgagee cannot, by a suit to foreclose on the same property, compel one who claims to hold the title passed by such sale to appear and make proof thereof.*^ But in all jurisdictions v^here a senior mortgagee forecloses his mortgage and sells the property without making the junior mortgagee a party, or giving him notice, the purchaser at such judicial sale, whether it be the senior mortgagee or a stranger, acquires his title subject to the right of redemption by the junior mortgagee." And the same rule obtains where the junior mortgagee has assigned all his interest in the mort- gage and the notes secured thereby to a third person, who is not a party, and is without notice of such proceedings and sale; *' and such owner of the notes and junior mortgage may maintain an action against such purchaser to foreclose his mortgage,^^ because the record of the junior unsatisfied mort- Thompson v. Hemenway, 218 111. 46, 109 Am. St. Rep. 239. 75 N. E. 791. A purchaser on foreclosure takes the property discharged from all liens and interests acquired pending tne suit by persons charged with constructive notice thereof, al- though they were not made parties to the suit ; and the latter must seek satisfaction from the proceeds of the sale. This was the case of a sale of a railway. Stewart v. Wheeling & L. E. R. Co. 53 Ohio St. 151, 34 Ohio L. J. 56, 2 Ohio Leg. News, 659, 41 N. E. 247, 29 L.R.A. 438. ^^ Diiesterberg v. Sivartzel, 115 Ind. 180, 17 N. E. 155. 55 The supreme judicial court of Massachusetts, in the case of Hiiz- zcy V. Hcffcrnan, 143 Mass. 232. 9 N. E. 570; say that a sale under foreclosure of a prior mortgage terminates the interest of the junior mortgagee in the premises, and vests in the purchaser an estate in fee free from the junior mort- gage, or from any right of redemp- tion in the mortgagor or his subse- quent grantees. 56 H itchier v. Citizens' Bank, 63 Miss. 403. ^"^ Holliger v. Bates, 43 Ohio St. 437, 2 N. E. 841. See Levin v. Gates, as trustee, etc. 71 Misc. 234, 128 N. Y. Supp. 746. See also Capchart v. McGahey, 132 Ala. 334, 31 So. 503. ^^Holliger v. Bates, 43 Ohio St. 437, 2 N. E. 841. ^^ HolUger v. Bates, 43 Ohio St. 437. 2 N. E. 841. The fact that the purchaser of the notes and mortgage did not take a written assignment of the junior mortgage and record it, or obtain from the mortgagor a quit § 694] DELIVERING DEED. 1023 gage to secure notes unpaid at the time of such sale put the purchaser upon inquiry.^" § 694. Same — Licenses and trusts. — It is held that the purchaser at a mortgage sale of lands subject to a secret re- sulting trust takes the land freed from the trust, where the mortgagee had no notice of the trust at the time of taking the mortgage, although such purchaser had notice at the sale, and was a surety on the bond secured by the mortgage, and was familiar with the whole transaction.^^ And a person who takes possession of premises under a mere license from the mortgagee cannot set up his possession against the claim of a purchaser at a regular foreclosure sale under the mort- gage to immediate possession, sustained by the referee's deed, although such licensee has had no notice of the foreclosure proceedings.^^ The supreme judicial court of Massachusetts, in the case of Cook V. Young,^^ say that an arrangement between per- sons interested in real estate subject to a mortgage, that at foreclosure one should take title, and. after making sale, divide the surplus, implies that such one should have power, in his discretion, to make a sale, convey good title to the pur- chaser, and collect the purchase money, and does not create a resulting trust following the land. And it is also said the fact that the first mortgagee is. by the terms of the mortgage, to receive all profits and gains from the mortgaged property, and after paying wiiat is due to himself, to pay over any sur- plus to the other creditors, does not make him a trustee for them, where no surplus ever comes into his hands, so as to claim deed of his equity of redemp- 61 Logan v. Eva, 144 Pa. St. 312, tion and record it, does not de- 22 Atl. 757, 28 W. N. C. 464, 48 feat his junior mortgage, or estop Phila. Leg. Int. 454. him from foreclosing it. Holliger ^^ Wing v. De la Rionda. 131 N. V. Bates, 43 Ohio St. 437, 2 N. E. Y. 422, 30 N. E. 243, 43 N. Y. S. R. 841. 305. ^0 Holliger v. Bates. 43 Ohio St. 63 n n. E. 752. 437, 2 N. E. 841. 1024 MORTGAGE FORECLOSURES. [§ 695 affect his purchase of the property on a foreclosure for liis debt.^* § 695. Same — "More or less." — In the conveyance and mortgaging of real estate it is the usual practice to describe the property by metes and bounds, or governmental sub- divisions, and fractions thereof, specifying the number of acres, and adding the qualification, "more or less." ^^ But it is said that the omissior) of the words "more or less" after the number of acres is given in a mortgage, from the execution founded on a judgment of foreclosure, and from the entry of a levy, will not vitiate the sale as a sale of the entire tract embraced in the mortgage, or limit the quantity sold to the exact number of acres stated.^® And the supreme court of South Carolina, in ex parte Boyce,^' say that the purchaser of property at a mortgage foreclosure is entitled to a tract of three and one quarter acres on which the residence is situated, as well as to a tract of sixty-five and one-half acres, where it is described in the mortgage, and also in the complaint in the foreclosure proceedings as "being a place whereon" the mort- gagor resides and containing sixty-five and one-half acres, more or less, and the mortgagor for many years has treated the two parcels as one tract. § 696. Same — Mortgaged succession. — The supreme court of Louisiana, in the case of Forstall's Succession,^^ say that where mortgaged succession property is sold by executory process, the purchaser cannot be compelled to pay to the suc- cession representative the amount of ranking special mort- gages which he is entitled to retain after satisfying the junior ^^New Orleans Nat. Banking ^^ Breach v. O'Neal, 94 Ga. 474, Asso. V. Le Breton, 120 U. S. 765 ; 20 S. E. 133. See Skaggs v. Kelly, 30 L. ed. 821, 7 Sup. Ct. Rep. 772. 42 S. W. 275. (Tenn.) 65 See 3 Kerr on Real Prop. §§ 67 19 5. E. 495. 2335, 2336. 68 39 La. An. 1052, 3 So. 277. § 697] DELIVERING DEED, 1025 mortgage of the seizing creditor, but' it is otherwise if the unsatisfied mortgages are general. ^^ § 697. Same — Obligations of purchasers. — In those cases where the grantee of a mortgagor takes subject to two mortgages, and purchases the property at a foreclosure sale under the first mortgage, this will not extinguish the lien of the second mortgagee, because, having taken his conveyance from the mortgagor subject to the lien of the second mortgage, he is bound thereby.''^'' And a bondholder purchasing at a mortgage foreclosure sale and paying bonds for the mort- gaged property may be compelled, by personal judgment, to pay the amount due upon other bonds subsequently decreed to be of equal standing with the bonds of such purchaser.'^ The supreme court of the United States, in Olcott v. Head- rick,'^ say that a purchaser of property at a foreclosure sale under a decree which makes him liable for claims against the receiver which shall be presented within six months after the confirmation of the sale, is liable for such a claim presented after said six months, where the decree of confirmation of the sale makes such purchaser liable for all claims against the re- ceiver without any limitation as to the time of their presenta- tion. And the same court say in the early case of Lovell v. Cragin,'^ that the obligation of purchasers on foreclosure to pay their pro rata share of the debt to holders of notes who are not parties, follows the land in the hands of third persons not parties to the judgment, and is in the nature of a judicial mort- gage; but to be effective in Louisiana, as to such third per- sons, the judgment must be inscribed with the recorder of mortgages, and does not give a lien until it has been registered as required by the statutes. ^^Forstall's Succession, 39 La. 72 141 u. S. 543, 35 L. ed. 851, 12 An. 1052, 3 So. 277. Sup. Ct. Rep. 81. 70 See Kennedy v. Borie, 166 Pa. 73 135 U. S. 130. 34 L. ed. Z72, 10 St. 360, 31 Atl. 98, 36 W. N. C. 72,. Sup. Ct. Rep. 1024. 71 Moran v. Hagerman, 12 C. C. A. 239, 64 Fed. 499. Mortg. Vol. II.— 65. 1026 MORTGAGE FORECLOSURES. [§ 698 § 698. Same — Parol trusts. — It is thought that wliere mortgaged lands are held under a parol trust, of which the mortgagee has no knowledge, and forecloses his mortgage without joining the beneficiaries, this will not avoid the sale, even though the purchaser had knowledge of the terms.'* § 699. Same — Possession and ejectment. — We have al- ready seen that the purchaser at a foreclosure sale, — be he the mortgagee, lien holder, or a stranger, — acquires all the rights and estate of the mortgagor.'* Among other things he is entitled to recover in ejectment as against the mortgagor,'^ and also against persons, not made parties, for the purpose of determining the rights of the latter." It is thought that a notice to quit, or demand for possession, need not be given by a purchaser at foreclosure sale in those cases where the occupant denies the tenancy and asserts ownership in him- self.'' § 700. Same — Prior liens — Rights and liabilities. — It is axiomatical, though formally adjudicated and determined, that a mortgage foreclosure does not cut ofif the rights of persons and parties under a prior mortgage, where those rights are reserved by the decree.'^ It is equally true that a purchaser at "^^ Cooper V. Loughlin, .75 Tex. show the judgment and execution 524, 13 S. W. 27. with proceedings thereon. See 75 See ante, § 683. Young v. Algco, 3 Watts (Pa.) 223, 76Gi7/ V. Weston, 110 Pa. St. 227. 305, 1 Atl. 917. "^"^ Dodge v. Omaha & S. W. R. The supreme court of Pennsyl- Co. 20 Neb. 276, 29 N. W. 936. vania, in the case of Gill v. Weston, '^ Sims v. Cooper, 106 Ind. 87, supra, say it is unnecessary that 5 N. E. 726. such purchaser, in an action of "^^ Humphreys v. MeKissock, 140 ejectment brought by him against U. S. 304, 35 L. ed. 473, 11 Sup. the defendant in the execution on Ct. Rep. 779 ; 46 Am. & Eng. R. which the land was sold, or any Cas. 261, 10 Ry. & Corp. L. J. 303. one coming into possession under A purchaser of a railroad sold him, should show previous title to under a decree of foreclosure, dis- the land in the defendant in the charged of all liens and claims execution. It is sufficient for him to against the former owner or its re- § 700] DELIVERING DEED. 1027 a sale under a prior mortgage to the foreclosure of which the subsequent mortgagees were not made parties, cannot maintain an action to compel them to pay the amount of the prior mort- gage and of the improvements placed by him on the prem- ises.'" And when a purchaser takes land expressly subject to two mortgages he cannot, by defaulting in the payment of in- terest upon the prior mortgage, bring about a sheriff's sale and buy in the land so as to hold it discharged from the lien of the second mortgage; especially is this true where he enters into a combination for such result, and conceals the pendency of the foreclosure of the prior mortgage." A sale under the foreclosure of a junior mortgage is subject to the senior lien and the purchaser at such sale buys only the equity of redemp- tion.'^ On the same principle, it is held that a purchaser at a foreclosure sale does not acquire a title paramount to a mortgage upon a portion of the premises as to which the lien of the mortgage foreclosed has been released, by taking in his own name a tax title under delinquent taxes paid with moneys paid to him by the referee out of the proceeds of the sale, under a provision of the decree that the back taxes be paid first, nor by the payment of taxes subsequently assessed against the property, since the back taxes are in effect paid by the court out of the moneys of those who should have paid them in the first instance, and the subsequent taxes are proper- ly payable by such purchaser.'' The title of the purchaser at a foreclosure sale relates back to the time of the execution of the mortgage.'* Hence, it has been held that the purchaser at foreclosure sale of a building one wall of which the mortgagor, after the execu- tion of the mortgage, had agreed in writing that the adjoin- ceivers, cannot be compelled to pay ®^ Kennedy v. Borie. 166 Pa. St. a judgment against the receivers in 360, 31 Atl. 98, 36 W. N. C. 7i. favor of an injured employee. Chi- ^^ Garza V. Howell, 37 Tex. Civ. cago & O. R. R. Co. v. McCamnion, App. 585, 85 S. W. 461. 61 Fed. 772. 83 Morss v. Burns, 17 N. Y. Supp. 80 Robbins v. Beers, 49 N. Y. S. 739, 44 N. Y. S. R. 479. R. 360, 21 N. Y. Supp. 221. 84 See post, § 712. 1028 MORTGAGE FORECLOSURES, [§ 701 ing owner could use as a party-wall and place his joists there- in, acquires such party wall and the ends of the joists placed therein, where the adjoining owner is duly made a party to the foreclosure action and barred of all right to the mortgaged property.®^ The Delaware chancery court, in the case of Foxwell V. Slaughter,^® say that the purchaser of lands at a judicial sale on scire facias upon a mortgage cannot restrain the prosecution to judgment, by an assignee of a purchase money mortgage upon the same land, duly recorded and open to his inspection and executed at the same time as the mort- gage on which the sale was had, although recorded later, on the grounds that it was agreed between the parties to both mortgages at the time of their execution, but not expressed therein, that the lien of the purchase-money mortgage was to be postponed to that of the other mortgage, and that the de- clarations of third parties and the general understanding were to the effect that the sale at which he purchased would pass a fee title. It is a general rule that a mortgagor cannot claim any benefit from a purchase of outstanding titles or claims to the property by the purchaser at the sale under the mortgage.^'' And the supreme court of Iowa, in the case of Austin v. Bowman,*^ say that it is not evidence of bad faith on the part of one holding a certificate to lands sold on foreclosure of a superior lien, that afterwards, observing defects in a title, he took security to protect himself against other incum- brances ; nor will equity require him to abandon his valid title to the land and seek to recover on his security. § 701. Same — Purchaser at irregular or invalid sale. — Invalid sales of mortgaged property convey no title as against parties having an interest or an equity in the mortgaged prem- ises; an irregularity in such sale may be such as to prevent 85 Leavenworth Lodge, No. 2, I. ^7 Ritchie v. Jtidd, 137 111. 453, 27 O. O. F. V. Byers, 54 Kan. 323, 38 N. E. 682. Pac. 261. 88 81 Iowa, 277, 46 N. W. 1111. 86 5 Del. Ch. 396 § 701] DELIVERING DEED. 1029 the title from passing thereunder. Thus it has been said that a purchaser of property at a sale under a deed of trust, with knowledge of an order enjoining the sale, acquires only such right, as against the plaintiff in the action wherein the injunction issued, as the equity of the trust creditor may, on hearing the cause, be held to confer.^^ And the mortgagee purchasing at an irregular foreclosure sale and conveying the land to a bona fide purchaser, may be compelled to account to the holder of an unrecorded deed who was not made a party.^° Where there is nothing due upon the mortgage when it is foreclosed no legal title is obtained by the pur- chaser.^^ The supreme court of Minnesota, in the case of Jellison v. Halloran,^^ say that a grantee of a purchaser at a void fore- closure sale, who goes into and holds possession in good faith and under circumstances from which assent of the mortgagor may be implied, is the equitable assignee of the mortgage, and occupies the position of a mortgagee in possession.^^ And a purchaser of land at a sale under a trust deed made without the owner's knowledge and without any purpose to pay off the debt secured, but merely to give title to the purchaser in order that he may hold it as security for a debt from the owner's husband, can hold it, if at all, as a lien for no more than the amount bid in his name at the trustee's sale.^* The mortgagor cannot avoid the effects of a void foreclosure, without offering to pay what is equitably due under the de- cree with interest.^* 89 Osborn v. Glascock, 39 W. Va. should not be permitted to recover 749, 20 S. E. 702. one of the lots from a purchaser at 9° Slattery v. Schwannecke, 44 a void sale under the mortgage, Hun (N. Y.) 75. without fully reimbursing the pur- ^'^ Bow en v. Brogan, 119 Mich. chaser for money used in discharg- 218, 75 Am. St. Rep. 387, 77 N. W. ing the debt. Whitney v. Krapf, 8 942. Tex. Civ. App. 304, 27 S. W. 843. 92 44 Minn. 199, 46 N. W. 332. 94 Rogers v. Rogers, 141 111. 226, 93 It is thought that the heirs of a 30 N. E. 542, aff'g 40 111. App. 480. mortgagor of two lots, each of 95 StuU v. Masilonka, 74 Neb. which is liable for the entire debt, 309, 104 N. W. 188, 108 N. W. 166. 1030 MORTGAGE FORECLOSURES. [§ 702 § 702. Same — Rents — Title to. — The rents, issues and profits of mortgaged property pass to the purchaser thereof at a foreclosure sale. But a purchaser on foreclosure sale is not entitled to recover from the mortgagor for rent there- after collected by him, where he did not assume to act as the purchaser's agent in the transaction. The remedy of the purchaser in such case is against the tenant.®^ Hence in those cases where a lessee who anticipates the payment of rent, with notice of an existing mortgage upon the premises, does so at his own peril, and can be compelled to pay a second time by the purchaser at a foreclosure sale under the mortgage, for the period elapsing after the foreclosure.^' § 703. Same — Riparian mortgages. — The supreme court of New York, in the case of the Mutual Life Insurance ^^ Hatch V. Sykes, 64 Miss. 307, 1 So. 248. ^""Hartley v. Meyer, 2 Misc. 56, 20 N. Y. Supp. 855, 49 N. Y. S. R. 351. The Indiana supreme court, in the case of Brysoii v. McCrai-y, 102 Ind. 1, 1 N. E. 55, say that under the act of 1879, the tenant of the judgment •debtor in possession was treated as the tenant of the purchaser, and was accountable to him for the reasonable rents, in the first in- stance, whether the judgment debt- or was solvent or insolvent. If the premises were not redeemed, the rents so collected belonged to the purchaser. If the premises were redeemed, the rents so col- lected were allowed as a payment in favor of the judgment debtor on the judgment. Under Act 1861, if a person in good faith bought the rents from the judgment debtor, he could hold them as against the execution purchaser, and was not liable to him therefor. Under Act 1879, if a person bought the rents from the judgment debtor, he paid for them at his peril, because the occupant of the premises was liable to the execution purchaser for the reasonable rents. But these changes did not so materially affect the rights of the mortgagor under a contract made before Act 1879 took effect as to bring that Act within the constitutional limitation as to existing contracts. The case of Gale V. Parks, 58 Ind. 117, so far as it holds that the execution purchaser might recover rents of the judgment debtor independently of the statute, must be regarded as overruled. Bryson v. McCrary, 102 Ind. 1, 1 N. E. 55. In railroad mortgages and fore- closures a receiver of a road does not, by his receipt of rent from a lessee of the right to use a portion of the road under a contract made pending the suit, and by his recog- nition of the contract, create a general tenancy so as to affect the § 703] DELIVERING DEED. 1031 Company v. Voorhis,^® say that a mortgagee of upland does not, upon foreclosure of his mortgage, obtain a title to lands under water in front of the upland, granted to the mortgagor by the state after the execution of the mortgage, and not in- cluded in the description in the mortgage.^® rights of the purchasers on fore- closure. Fai-mers' Loan & T. Co. V. Chicago & A. R. Co. 44 Fed. 653. 98 71 Hun (N. Y.) 117, 24 N. Y. Supp. 529, 53 N. Y. S. R. 874. 99 This holding seems to be some- what in conflict with the New Jersey doctrine as heretofore given (See ante, § 291), and for that reason the facts in the case are here set out fully and the reasoning of the court given in extenso. The facts in the case are as follows : "Peter Voorhis owned a lot of land in Nyack, Rockland county, bound- ed on the east by the Hudson river. On the 25th of April, 1872, he exe- cuted a mortgage, in which his wife joined, to the plaintiff, to secure a loan of $40,000. This mortgage was foreclosed, and on the 23rd of July? 1873, was sold under a decree in the foreclosure action. The plaintiff bought in the property for $10,000, and duly entered a judg- ment for the deiiciency, which was $32,853.40, on the 9th of December, 1880. On the 30th day of Novem- ber, 1872, Peter Voorhis applied to the commissioners of the land office for a grant of land under water ad- jacent to this mortgaged property, and also in front of two other pieces he owned, adjoining the same. The grant was made upon the petition of Voorhis that he was the owner of the upland, and in oc- cupation of the same, and that the grant was needed for the beneficial enjoyment of the adjoining uplands for shipping stone quarried on the uplands, and that the petitioner in- tended to build a dock for public steamboat uses and general pur- poses. Upon due publication of the notice of application the people of the state of New York granted the lands under water "for the pur- pose of promoting the commerce of our said state, or for the beneficial enjoyment of the adjacent owner," on the 23rd of July, 1873. Peter Voorhis died in the next year. The defendants were the heirs at law of the deceased. The court in the course of the opinion say: "The question is, what interest the facts gave the plaintiff in the lands under water in front of the mortgaged upland. A grant to any other person than the upland owner is void. (New York Session Laws, 1850, c. 283.) The applicant, Voor- his, was the owner of the land up to the sale under foreclosure. Be- fore that time the mortgage was simply a security. Plaintiff had no other interest in the land than to be paid out of it. Waring v. Smyth, 2 Barb. Ch. (N. Y.) 119, 47 Am. Dec. 299; Calkins v. Calkins, 3 Barb. Ch. (N. Y.) 305; Gardner v. Heartt, 3 Den. (N. Y.) 232; Aster V. Miller, 2 Paige. Ch. (N. Y.) 608; Morris v. Mowatt, 2 Paige. Ch. (N. Y.) 586. 22 Am. Dec. 661 ; As for v. Hoyt, 5 Wend. (N. Y.) 603. The description in the mortgage did not 1032 MORTGAGE FORECLOSURES. [§ 704 § 704. Same — Subrogation of purchaser. — The general rule is that a &o«a fide purchaser at a mortgagee's sale which proves defective is, after paying the purchase money, subro- gated to the rights of the mortgagee.^ The mortgage is in include the lands under water. When it was given, Voorhis, the mortgagor, had no interest in it. The land belonged to the state. People V. Canal Appraisers, 2iZ N. Y. 461 ; Ledyard v. Ten Eyck, 36 Barb. (N. Y.) 102. The court of appeals, in Gould v. Railroad Com- pany (6 N. Y. 522), held that the owner of the upland had no other right than all others in the lands under water, and, while this princi- ple is questioned in Rumscy v. Rail- road Company (133 N. Y. 79, IS L.R.A. 618, 28 Am. St. Rep. 600, 30 N. E. 654), no question is made as to the title being in the people as to lands between high water mark and under water. Blakslee Manu- facturing Co. V. Blakslee Sons Iron Works, 129 N. Y. 155, 29 N. E. 2 ; Rumsey v. Railroad Co. 114 N. Y. 423, 21 N. E. 1066; People v. New York & S. I. Ferry Co. 68 N. Y. 71. The foreclosure sale did not, therefore, extend a title in lands not covered by it. The mortgaged lands were not extended by the mortgage being on tide water, as the lands under water then belonged to the sovereign. The title Voorhis took was abso- lute and unconditional. Abbott v. Curran, 98 N. Y. 665. The paten- tee, being the owner of the upland thereof, got a good title, and, if any right was obtained by the fore- closure sale, it was a right to sue for damages for an injury to the right of the upland to go to the river. This right was destroyed by the upland owner himself, and the mortgagee got the land covered by the mortgage." See also Leonard v. Wood, 33 Ind. App. 83, 70 N. E. 827. ^ Bruschke v. Wright, 166 111. 183, 57 Am. St. Rep. 125, 46 N. E. 813 ; Equitable Mortgage Co. v. Gray, 68 Kan. 100, 74 Pac. 614; Finlayson v. Peterson, 11 N. D. 45, 89 N. W. 855 ; Gnffin v. Griffin, 75 S. C. 249, 117 Am. St. Rep. 899, 55 S. E. 317. See Jordan v. Sayer, 29 Fla. 100, 10 So. 823; Brown v. Brown, 7Z Iowa 430, 35 N. W. 507 Lanier v. Mcintosh, 117 Mo. 508 38 Am. St. Rep. 676, 23 S. W. 787 Townsend v. Thomson, 139 N. Y, 152, 34 N. E. 891, 54 N. Y. S. R 665 ; Brewer v. Nash, 16 R. I. 458 27 Am. St. Rep. 749, 17 Atl. 857 Givins v. Carroll, 40 S. C. 413, 42 Am. St. Rep. 889, 18 S. E. 1030 McCamant v. Roberts, 87 Tex. 241 27 S. W. 86, rev'g, 25 S. W. 731 Capell V. Dill, 82 Kan. 652, 109 Pac 286; Rodman v. Quick, 211 111. 546, 71 N. E. 1087 ; Kelso v. Norton, 65 Kan. 778, 93 Am. St. Rep. 308, 70 Pac. 896; Stouffer v. Harlan, 68 Kan. 135, 64 L.R.A. 320, 104 Am. St. Rep. 396, 74 Pac. 610 ; Sloane v. Lucas, 2>7 Wash. 348, 79 Pac. 949; Investment Securities Co. v. Adams, 37 Wash. 211, 79 Pac. 625; Bosch- ker V. Van Beek, 19 N. D. 104, 122 N. W. 338 ; Stough v. Badger Lum- ber Co. 70 Kan. 713, 79 Pac. 72,7. See also Sims v. Steadman, 62 S. C. 300, 40 S. E. 677. A purchaser of mortgaged prem- § 704] DELIVERING DEED. 1033 equity regarded as assigned to such purchaser,^ even if the mortgagee's deed to him does not contain language amounting to a legal assignment. And this is so, even in case of a minor whose guardian inserted in the mortgage invalid powers of ises who pays the purchase price at a foreclosure sale which is in- valid because of failure to describe the land in the advertisement or the deed, is entitled in equity to the security of the mortgage for the amount due and paid on the debt. Lanier v. Mcintosh, 117 Mo. 508, 38 Am. St. Rep. 676, 23 S. W. 787. There being irregularities a purchaser at a sale of lands subse- quently declared void therefor, made under a power in a mortgage, as well as purchasers thereof at a subsequent partition sale among the purchasers' heirs, is subrogated to the rights of the . mortgagee, and such purchase operates as a trans- fer of the mortgage to him. Givins V. Carroll, 40 S. C. 413, 42 Am. St. Rep. 889, 18 S. E. 1030. The owner of the equity of re- demption not being a party to a sale under a decree in a foreclosure suit no title is conveyed, but the pur- chaser becomes subrogated to the rights of the mortgagee in the prem- ises, as well as in the mortgage debt. Jordan v. Sayre, 29 Fla. 100, 10 So. 823. See ante, § 137. The court of appeals of New York, in the case of Tozcnsoid v. Thomson, 139 N. Y. 152, 34 N. E. 891, 54. N. Y. S. R. 665, say that a purchaser at a mortgage foreclosure sale defective and void as against the owner of the equity of redemp- tion because he was not made a party to the action becomes an as- signee of the mortgage, and, if he lawfully enters into possession of the land, a mortgagee in possession. Where three judgments in fore- closure were attempted to be sat- isfied by one sale, which was held erroneous because one of them was against a single individual and the others were jointly against him and another, and the sale was set aside, a purchaser who has paid the two joint judgments may be subrogated to the rights of the mortgage creditors under those judgments. Brown v. Brown, 73 Iowa, 430, 35 N. W. 507. In Texas a probate court has no jurisdiction, without the mortgagor being made a party to order a sale by an administrator of a duplicate land certificate which was mort- gaged to the intestate for a loan of money and for his services in pro- curing and locating it upon the lands ; and such sale will vest in the purchaser no title to the cer- tificate or land nor any right to the mortgage, and will not subro- gate him to any of the mortgagee's rights, or to the lien upon the land or the certificate. McCamant V. Roberts, 87 Tex. 241, 27 S. W. 86, rev'g 25 S. W. 731. 2 See Titcomb v. Fonda, Johns- town & Gloversville R. R. Co. 38 Misc. 630, 78 N. Y. Supp. 226; Smithson Land Co. v. Brautigain, 16 Wash. 174, 47 Pac. 434. See also Nash v. Northwest Land Co. 15 N. D. 566, 108 N. W. 792. 1034 MORTGAGE FORECLOSURES. [§ 705 sale.' And it is said that an entry of satisfaction on the record of a mortgage by the mortgagee after an invalid sale of the premises does not debar the purchaser, who has paid the pur- chase price, of his right to the security of the mortgage for the amount due and paid on the debt.* It is thought that as between heirs of a mortgagor and persons claiming under a purchaser at a void sale under a power contained in the mortgage, such persons are entitled to be credited with the amount paid at such mortgage sale, with interest added thereto annually, from which is to be deducted the rent due from them, but to which is to be added the amount paid for improvements and taxes.* § 705, Same — Taxes on land — Liability of purchaser for. — It has been said that the purchaser of real estate at a sale under a mortgage or trust deed is liable for the taxes ac- cruing during the year of the sale,® but which have not been assessed at the time, especially where the auctioneer publicly announced at the sale that the purchaser would be required to pay all the taxes for that year.''^ The supreme court of North Carolina say that a purchaser at a foreclosure sale ob- tains the premises free and clear from the burden of taxes resting upon them at the time the mortgage was executed, w^here the mortgagee at the time of the execution had no notice of such taxes, although the purchaser had notice thereof before his purchase under the statute,^ providing that arrears of taxes "shall not affect purchasers w^ithout notice." ^ But 3 Brewer v. Nash, 16 R. I. 458, Equitable Life Assurance Society 27 Am. St. Rep. 749, 17 Atl. 857. of United States v. Toplitc, 69 Misc. ^Lanier v. Mcintosh, 117 Mo. 457, 128 N. Y. Supp. 153. 508, 38 Am. St. Rep. 676, 23 S. ^ Grosvenor v. Bethel, 93 Tenn. W. 787. 577, 26 S. W. 1096. See Union ^ Givins v. Carroll, 40 S. C. 413, Trust Co. v. Electric Park Amuse- 42 Am. St. Rep. 889, 18 S. E. 1030. ment Co. 135 N. W. 115 (Mich.) 6 See Fidelity Insurance Trust & ^ jvj c Laws, 1891, c. 391. Safe Deposit Co. v. Roanoke Iron ^ Moore v. Sugg, 114 N. C. 292, Co. 84 Fed. 744; Carroll v. Haigh, 19 S. E. 147. 97 111. App. 576. Contra, see § 706] DELIVERING DEED. 1035 the supreme court of South CaroHna, in the case of Wilson V. Cantrell,^° say that a purchaser under foreclosure of a mortgage, having a lien before the issuance of a tax execu- tion, takes title subject to that of the purchaser under the tax execution by virtue of the South Carolina statute declaring all taxes, assessments and penalties a first lien in all cases whatever upon the property taxed. ^^ The supreme court of Missouri, in the case of Bensieck v. Cook,^^ say that the payment of taxes and of part of the debt secured by a trust deed is not a defense or counterclaim in favor of the owner of the equity of redemption against the purchaser of the property at the trustee's sale.^^ § 706. Same — Timber — Right to. — The purchaser at mortgage sale acquires the trees growing upon the property at the time of the sale ; and the title relating back to the time of the execution of the mortgage. ^^ it therefore follows that a purchaser at a foreclosure sale takes free from the right conveyed by the mortgagor, subsequent to the execution of the mortgage, to cut timber on the land, although the grantee of such right purchased the, mortgage and assigned it, with a verbal agreement that the timber should be discharged from the lien of the mortgage, where such purchaser had no notice of such agreement. ^^ And the purchaser of land at a sale under a power in a mortgage gets a good title to the timber "40 S. C. 114, 18 S. E. 517. 1885, remaining unpaid, which was ^1 Wilson V. Cantrell, 40 S. C. opposed on the ground that said 114, 18 S. E. 517. taxes were illegally assessed and ^2 110 Mo. 173, 32) Am. St. Rep. therefore not valid liens, and on 422, 19 S. W. 642. consideration by the court was re- "^^ Bensieck v. Cook, 110 Mo. 173, fused, with liberty to the purchaser iZ Am. St. Rep. 422, 19 S. W. 642. to be relieved from his purchase. In re Byrnes (N. Y. 1886) the i* See ante, § 700; post, § 712. purchaser of real estate on fore- ^* Beaufort County Lumber Co. closure of a mortgage, made ap- v. Bail, 111 N. C. 120, 15 S. E. plication to be allowed on his pur- 941, rehearing denied in 112 N. C. chase money the amount of taxes 350, 17 S. E. 537. on the property for the years 1877- 1036 MORTGAGE FORECLOSURES. [§ 707 thereon as against a purchaser of the timber from the mort- gagor, although he has had notice of an unrecorded release by the mortgagee as to the timber right after the sale, but be- fore taking the deed." § 707. Same — Usury — Bona fide purchaser. — It is a well settled rule that the title of an innocent purchaser of land at a judicial sale under a mortgage is not affected by the usurious character of the mortgage.^' It follows there- fore that a person who, after the foreclosure sale and before the expiration of the time of redemption, purchases the inter- est or estate of the mortgagee who bid in the property, will be protected as a bona fide purchaser.^® § 708. Execution and delivery of deed. — The referee or sheriff making a sale of mortgaged premises under a decree of foreclosure, is required to execute a deed of the premises to the purchaser on such sale.^^ The deed may be executed and delivered before the sale is confirmed ; ^° it will take effect immediately upon delivery, and divests all parties to the ac- tion of the title from the time of the sale.^^ The court will not order the officer making a sale to exe- cute and deliver a deed to the purchaser until the whole of '^^ Barber v. IVadsworth, 115 N. '^'^ McLaren v. Hartford Ins. Co. C. 29, 20 S. E. 178. 5 N. Y. 151; Fort v. Burch, 6 Barb. ^'^ Sharp e v. Tatnall, 5 Del. Ch. (N. Y.) 60; Fuller v. VanGecsen, 302; Holmes v. State Bank, 55 4 Hill (N. Y.) 171. Minn. 530, 55 N. W. 555. But where a purchaser of land at 18 Holmes v. State Bank of Du- a sale under a decree in chancery, luth, 53 Minn. 530, 55 N. W. 555 19 N. Y. Supreme Court Rule 61 20 See Mitchell v. Bartlett, 51 N Y. 447, aff'g 52 Barb. (N. Y.) 319 Fort V. Burch, 6 Barb. (N. Y.) 60 Fuller V. Van Gecsen, 4 Hill (N Y.) 171 ; Jones v. Burden, 20 Ala 382 ; Walker v. Schiim, 42 111. 462 ; Jackson V. Warren, 32 III. 331. before confirmation of the sale, in- stitutes a suit based upon his title acquired through such purchase, he can obtain no relief predicated on such title, even though he should, by a supplemental bill, establish a confirmation by the court subse- quent to the filing of his original § 709] DELIVERING DEED. 1037 the purchase money has been paid into court, even where a junior mortgagee is the purchaser and a portion of the money which is not paid in belongs to such pucrhaser as surplus money, and will therefore shortly have to be returned to him.^^ When the deed is not ready to be delivered at the time fixed for that purpose, the remedy of the purchaser is by motion for leave to pay the money into court and to compel the referee to complete the same by delivering the deed.^^ It is said that the holder of a certificate of purchase at a foreclosure sale loses all rights under the certificate by neg- lecting to apply for a master's deed within the limit pro- vided by statute ; ^* after the time of redemption expires, he is not entitled to have the premises resold under the decree of foreclosure.^^ And the purchaser will not be entitled to a deed after that time even where he has been in actual posses- sion of the land for more than fifteen years, claiming owner- ship, and has paid all the taxes assessed thereon.^® The supreme court of Michigan, in the case of McCammon V. Detroit, Lansing and Northern Railroad Company,^' say that the failure of the sheriff to acknowledge a deed upon foreclosure by advertisement for five days after its filing will not invalidate the sale, as depriving the owner of the right of redemption in such time by paying the register of deeds, as the filing of the deed is notice to such owner. § 709. Requisites of sheriff's or referee's deed. — The New York Code provides that where property is sold pursuant to a decree or a judgment, which specifies the particular party or parties, whose right, title or interest is directed to be sold, the deed must distinctly state in the granting clause thereof whose right, title or interest was sold, without naming in bill. Brooks v. Kelly, 63 Miss. 616. 25 Peterson v. Emmerson, 135 111. 22 Battershall v. Davis, 23 How. 55, 25 N. E. 842 ; School Trustees v. (N. Y.) Pr. 383. Love, 34 111. App. 418. ^^ Clason V. Corley, 5 Sandf. (N. ^^ Peterson \. Emmerson, 135 111. Y.) 447. 55, 25 N. E. 842. 24 As 111. Rev. Stat. c. 77, § 30. 27 103 Mich. 104, 61 N. W. 273. 1038 MORTGAGE FORECLOSURES. [§ 710 that clause any of the other parties to the action ; otherwise, the purchaser will not be bound to accept the conveyance, and the officer executing it will be liable for such damages as the purchaser may sustain by the omission, whether he accepts or refuses the conveyance.^* This provision of the Code has been held to apply to a deed executed at a mortgage foreclosure sale, as well as to a deed executed upon the sale of property pursuant to an execution. ^^ A referee selling under a decree of foreclosure is required to comply with said provision of the Code, by inserting in the deed of conveyance the names of the parties who executed the mortgage foreclosed, and by stating that all the right, title and interest which said mortgagors had at the time of the execution of the mortgage, was sold and there- by conveyed.*" § 710. Error in description in mortgage — Correcting in deed. — Where there is a mistake in the description of the property as given in the mortgage, it may be corrected by a proper proceeding before foreclosure, or in the action to foreclose the mortgage; but where such mistake has been carried into the decree of foreclosure, and into all the proceed- ings thereunder, a purchaser at the sheriff's sale cannot main- tain an action to correct the decree and the subsequent proceedings although the sheriff at the sale may have pointed out, as the property which he was selling, the prop- erty that ought to have been described in the mortgage, be- cause the authority of the sheriff to sell is limited to the property actually described in the decree and order of sale.^^ Yet in a case where a mistake was made in the description of certain premises mortgaged, which mistake was carried through all the proceedings to foreclose the mortgage, sale 28 N. Y. Code Civ. Proc. § 1244. (N. Y.) N. C. 88, 12 Hun (N. Y.) ^^Randell v. VonEllcrt. 12 Hun 577. (N. Y.)-577. ^^ Miller v. Kolb, 47 Ind. 220. ^^Randell v. Von Ellert. 4 Abb. § 710] DELIVERING DEED. 1039 of the premises, confirmation of sale, and deed to the pur- chaser, but it appeared that the premises intended to be mortgaged had actually been appraised and sold under such mortgage, and the purchaser had taken possession of the same, the court held that no injury to the heirs of the mort- gagor being shown, the grantee of the purchaser was entitled to a decree correcting the mistake and quieting his title in said premises, but at his own cost and expense.^^ The supreme court of New York say that an error in a deed and mortgage in describing the starting point cannot be remedied by proceedings to correct the misdescription, taken in a foreclosure proceeding after the sale, without notice to the purchaser; and as such misdescription renders the title unmarketable, the purchaser at the foreclosure will be relieved from his purchase.^' A purchaser at a mortgage foreclosure sale cannot acquire the title to lands not described in the mortgage, although such lands may be described in the complaint and judgment.^* And where, by mistake, real estate belonging to one person is mortgaged by another as 'his property, and is sold under a decree of foreclosure to a purchaser who has no notice of such mistake, it has been held that such purchaser cannot have the .ale set aside and recover the purchase money bid and paid by him for such property at the sale.'* ^'i Parker v. Starr, 21 Neb. 680, ^^Hoopes v. Auburn Water 33 N. W. 424. Works Co. 37 Hun (N. Y.) 568, Statements by one who was at 574. the time the owner and in posses- It is thought that property omit- sion of land, as to where he under- ted by accident from a trust deed, stood the boundary Hne to be, are when both parties supposed the admissible as against the purchaser deed covered it, may be reached at the sale on foreclosure of a mort- and sold in a foreclosure suit, gage then on the latul. Flagg v. Shepard v. Pepper, 133 U. S. 626. Mason, 64, 6 N. E. 702. 33 L. ed. 706, 10 Sup. Ct. Rep. 438. ^^ Fitzpaliick w Szi!eeney,S6B.\.m ^^Neal v. Gillaspy, 56 Ind. 451, (N. Y.) 159, 30 N. Y. S. R. 525, 26 Am. Rep. 37. 9 N. Y. Supp. 219, aff'd in 121 N. Y. 707 mem. 1040 MORTGAGE FORECLOSURES. [§ 711 And it is said that a mortgage which describes other lands of the mortgagor than those intended by the parties will not be reformed by substituting those originally intended, when the lands described therein have been sold on foreclosure and the sum realized was the full amount of the mortgage.^^ Where, by inadvertence, the referee's deed embraces the w^hole mortgaged premises, a portion of which had previously been released from the lien of the mortgage, and was ex- cepted from the operation of the decree of foreclosure, the purchaser will acquire no title to the portion so released." And the same would be true even if the portion of the premises so released were embraced in the decree, but were not offered at the sale.'^ § 711. Variance of description in mortgage, decree and deed. — In a New York case it appeared that there was a clerical error in the decree of foreclosure, which consisted in giving a distance in the description of the premises as "about 193 feet, 4 inches" instead of "about 123 feet, 4 inches," which was the correct distance. The mortgage described the premises sold correctly, and they were correctly described in the lis pendens and in all the proceedings except the judgment. Following the words of description in the judgment was a reference to a deed, executed by the plaintiff to the defendant, in which the description was correct. The referee sold the premises described in the mortgage, and there was no pre- tence that the purchaser was misled. The report of sale was correct in its description, and, after the sale, an order of the court, amending the judgment by correcting the errone- ous description of the premises, was entered nunc pro tunc, upon consent of all the parties who had appeared in the action. On motion to compel the purchaser to accept the title, it was 36 Ray V. Ferrell, 127 Ind. 570, 27 Commerce v. Lock, 17 Wash. 528, N. E. 159. 61 Am. St. Rep. 923, 50 Tac. 478. 37 Laverty v. Moore, 32 Barb. (N. 38 Laverty v. Moore, 2Z N. Y. 658, Y.) 347. See also National Bank of aff'g 32 Barb. (N. Y.) 347. § 712] DELIVERING DEED. 1041 held that the court had ample power to make such amend- ment.^^ Where a parcel of land was sold under a decree of fore- closure and conveyed to the purchaser under an erroneous impression that the mortgage covered the entire tract, the value of the entire tract having been bid and paid, and the purchaser having been placed in possession thereof, and it was afterwards discovered that, from a mistake in the de- scription, the mortgage did not cover the entire premises in- tended to be mortgaged and that by reason thereof the legal title failed, it was held that the purchaser was entitled to be protected in the peaceable possession of the land purchased.*" But it is the general rule that the title of a purchaser at a mortgage foreclosure sale is co-extensive with the description contained in the mortgage, the bill to foreclose, and the decree under which the sale is made." § 712. Title of purchaser relates back to time of exe- cuting mortgage — Reserving easement. — The title of the purchaser at a sale under a decree of foreclosure relates back to the date of the delivery of the mortgage, as against all intervening purchasers and incumbrancers who were made parties to the action, or who became interested in the premises 39 Wood V. Martin, 66 Barb. (N. The Supreme Court of Iowa, in Y.) 241. See Hogan v. Hoyt, 37 the case of Hardin v. Iowa Rail- N. Y. 300; Hotaling v. Marsh, 14 road and Construction Company, 78 Abb. (N. Y.) Pr. 161; Alvord v. Iowa, 726, 43 N. V^. 543, 6 L.R.A. Beach, 5 Abb. (N. Y.) Pr. 451; 52, 40 Am. & Eng. R. Cas. 394, say Woodruff V. Wicker, 2 Bosw. (N. that on foreclosure of a deed of Y.) 613; Close w. Gillespey, 3 Johns. trust on land across which a rail- (N. Y.) 518. road is constructed, a djscree should ** Waldron v. Leston, 15 N. J. Eq. not except the right of way from (2 McCart.) 126. See De Rimer the sale, where the de^ds for the V. Cantillon, 4 Johns. Ch. (N. Y.) land, and the trust created therein, 85. make no exception thereof, and the ^'^McGee v. Smith, 16 N. J. Eq. record does not show that there is (1 C. E. Gr.) 462. See also Stew- any right of way through the lands. art V. Wilson, 141 Ala. 405, 109 Am. St. Rep. 33, 37 So. 550. Mortg. Vol. II.— 66. 1042 MORTGAGE FORECLOSURES. [§ 712 pendente lite}^ All incumbrances and liens, and all con- ditions, reservations and restrictions which the mortgagor may have imposed upon the property subsequently to the execution of the mortgage, will be extinguished.*^ Thus, a plaintiff, being the owner of a lot which was subject to a mortgage, conveyed it to M., reserving an ease- ment therein for light and air to the windows of its church adjoining, M. assuming the mortgage. M. conveyed the lot, through a third person, to his wife, subject to the same mort- gage, but without an assumption on her part to pay the amount thereof. Upon foreclosure of the mortgage, the wife of M. ^^ Jackson V. Ramsey, 3 Cow. (N. Y.) 75, 15 Am. Dec. 242; Fuller v. VanGeesen, 4 Hill (N. Y.) 171; Klock V. Cronkhite, 1 Hill (N. Y.) 107; Bissell v. Payn, 20 Johns. (N. Y.) 3; Jackson v. Dickenson, 15 Johns. (N. Y.) 309, 8 Am. Dec. 336; Jackson V. Bull, 1 Johns. Cas. (N. Y.) 81; Lathrop v. Ferguson, 22 Wend. (N. Y.) 216; Nellis v. Lath- rop, 22 Wend. (N. Y.) 121, 122, 34 Am. Dec. 285; People's Savings Bank V. Hodgon, 64 Cal. 95; Rug- gles V. First Nat. Bank, 43 Mich. 192; Gamble v. Horr, 40 Mich. 561; Barnard v. Wilson, 74 Cal. 512, 16 Pac. 307; Champion v. Hinkle, 45 N. J. Eq. (18 Stew.) 162, 16 Atl. 701, 12 N. J. L. J. 87; Moulton V. Cornish, 61 Hun (N. Y.) 438, 16 N. Y. Supp. 267, 41 N. Y. S. R. 41. The purchaser at a mortgage foreclosure sale takes the place of the mortgagee in strict foreclo- sure at common law. Champion v. Hinkle, 45 N. J. Eq. (18 Stew.) 162, 16 Atl. 701, 12 N. J. L. J. 87. See post, chap. xxxv. The whole title vests in him on his receipt of a deed to the premises from the officer making the sale; and the title of such purchaser relates back to the time of the execution of the mortgage foreclosed, and he suc- ceeds as well to the title and estate acquired by the mortgagee by the delivery of the mortgage deed as to the estate the mortgagor had at the time of the execution of the mortgage. Champion v. Hinkle, 45 N. J. Eq. (18 Stew.) 162, 16 Atl. 701, 12 N. J. L. J. 87. The purchaser's title is adverse to an estate created by the convey- ance of the land by the mortgagor, subsequent to the execution of the mortgage; and the purchaser's fail- ure to appear in the probate court and ask for distribution to himself on settlement of such estate cannot prejudice his title. Barnard v. Wil- son, 74 Cal. 512, 16 Pac. 307. *3 Arterburn v. Beard, 86 Neb. 7ZZ, 126 N. W. 379; King v. Mc- Cully, 38 Pa. St. 76. See Rector v. Mack, 93 N. Y. 488, 45 Am. Rep. 260; Davis v. Connecticut Mut. Life Ins. Co. 84 111. 508; Wykes v. City of Caldwell, 71 Kan. 459, 80 Pac. 941 ; Nichols v. Tingstad, 10 N. D. 172, 86 N. W. 694; O'Brien V. Kluever, 4 Neb. (Unof.) 571, 95 N. W. 595. § 713] DELIVERING DEED. 1043 became the purchaser. In an action to restrain her from ob- structing the light and air to the windows of said church, it was held that under her foreclosure deed, Mrs M. acquired an absolute title, unincumbered by the easement, that she owed no duty to the plaintiff or mortgagee, requiring her to pay off the mortgage, and that there were no equitable rights against her w'hich would prevent her from asserting her title.** It seems that in such a case the plaintiff, to save its easement, should have appeared in the foreclosure suit, and bid the full amount of the mortgage debt and costs upon the sale, subject to the easement.*^ § 713. Time for redemption — Effect on title of purchas- er. — In those states where a period of time is allowed for redemption, after the sale of the premises under a mortgage foreclosure, a purchaser of land at such sale requires no legal title, nor right to be invested with a legal title, until the period for redemption has expired.*^ He cannot maintain an eject- ment or other possessory action on his certificate of pur- chase,*' for he will not be entitled to possession until the officer making the sale has executed and delivered to him a deed of the premises.** He acquires no title to the premises until the period for redemption has passed, and he is entitled to his deed. His deed, when executed, will relate back to the time of the sale in order to cut off intervening incumbrances. His title will become absolute only when his right to a deed accrues; until such time, he will have only an unmatured right to a ^Rector v. Mack, 93 N. Y. 488, 217 111. 105, 1 L.R.A.(N.S.) 1079, 45 Am. Rep. 260. 75 N. E. 447. See Carroll v. Haigh, ^^ Rector v. Mack, 93 N. Y. 488, 108 III. App. 264. 45 Am. Rep. 260. *'^ Rockwell v. Servant, 63 111. 424. 46 Rockwell V. Servant, 63 111. « Q'Brian v. Fry. 82 111. 87, 274 ; 424; Delahay v. McConnel, 5 111. (4 Bennett v. Matson, 41 111. 333; Pur- Scam.) 156; Bartlett, as trustee, etc. ser v. Cady, 120 Cal. 214, 52 Pac. V. Amberg, as receiver, etc. 92 111. 489. See Costigan v. Truesdell. 119 App. Z77; Schaeppi v. Bartholomee, Ky. 70, 115 Am. St. Rep. 241, 83 S. 1044 MORTGAGE FORECLOSURES. [§ 714 deed.*^ Under the Massachusetts statute it seems that it is not essential that a Hmitation to the time for redemption be expressly fixed, though in some cases it has been held that this omission has left the mortgage without foundation for foreclosure.^** § 714. All fixtures pass to purchaser under referee's deed. — The rules as to fixtures which pass to a purchaser on a mortgage foreclosure sale are the same as those which govern a conveyance from a grantor to a grantee. ^^ What- ever is attached to the freehold and would pass under a deed as between a vendor and a vendee, will pass as between a mortgagor and a mortgagee.*^ When a mortgagor, subse- quently to the execution of a mortgage, places machinery or other fixtures upon the mortgaged premises, the purchaser of such premises, at a foreclosure sale, will, therefore, acquire title to the fixtures as a part of the realty.^^ W. 98; Dolan v. Midland Blast 102 Me. 251, 66 Atl. 539. See ante, Furnace Co. 126 Iowa, 254, 100 N. §§ 490, 491, 492. W. 45. ^^ Miller v. Plumb, 6 Cow. (N. ^^ Stephens V. Illinois Mutual Fire Y.) 665, 16 Am. Dec. 456; Robin- Ins. Co. 43 111. 327, 331. See John- son v. Preswick, 3 Edw. Ch. (N. son V. Baker, 38 III. 98, 87 Am. Dec. Y.) 246; Union Bank v. Emerson, 29Z; Sweezy v. Chandler, 11 111. 15 Mass. 159. 445. ^3 Voorhees v. McGinnis, 48 N. ^^ Shepard v. Richardson, 145 Y. 278; Snedeker v. Warring, 12 Mass. 32, 11 N. E. 738. N. Y. 170; Bishop v. Bishop, 11 N. ^"^ Snedeker V. Warring, 12 N. Y. Y. 123, 62 Am. Dec. 68; Rice v. 170, 174. See Bishop v. Bishop, Dewey, 54 Barb. (N. Y.) 455; 11 N. Y. 123, 126, 62 Am. Dec. 68; Gardner v. Finley, 19 Barb. (N. Y.) Bank of Utica v. Finch, 3 Barb. Ch. 317; Miller v. Plumb, 6 Cow. (N. (N. Y.) 293, 299, 49 Am. Dec. 175; Y.) 665, 16 Am. Dec. 456; Robin- Robinson V. Preswick, 3 Edw. Ch. son v. Preswick, 3 Edw. Ch. (N. (N. Y.) 246; Main v. Schwarz- Y.) 246; Babcock v. Utter, 32 How. waelder, 4 E. D. Smith, (N. Y.) (N. Y.) Pr. 439, 1 Abb. App. Dec. 273; Winslow v. Merchants' Ins. (N. Y.) 27; Sullivan v. Toole, 26 Co. 45 Mass. (4 Mete.) 306. 38 Am. Hun (N. Y.) 203; Mainv. Schwara- Dec. 368; Union Bank v. Emerson, waelder, 4 E. D. Smith (N. Y.) 15 Mass. 159 ; Longstaff v. Meagoe, 273 ; Sands v. Pfeiffer, 10 Cal. 258 ; 2 Ad. & E. 167 ; Young v. Chandler, Clore v. Lambert, 78 Ky. 224 ; § 714] DELIVERING DEED. 1045 Thus, the owner of real estate, with a flouring mill thereon, which was subject to a mortgage, procured new machinery for such mill on credit, upon an agreement that the title to the machinery should not pass to the purchaser until it was fully paid for. The machinery was attached to the realty as was intended. The purcliaser upon the foreclosure of such mortgage was held to take title to the machinery as against the vendor of it, notwithstanding the contract and the vendee's failure to pay therefor.^* In determining whether chattels affixed to land will pass under a mortgage of the realty, it is immaterial whether such chattels were attached before or after the execution of the mortgage, because, as a general rule, they become bound by the mortgage whenever they become a part of the realty.^^ Wight V. Gray, 73 Me. 297; Union Bank V. Emerson, 15 Mass. 159; Lackas v. Bahl, 43 Wis. 53 ; Canning V. Owen, 22 R. I. 624, 84 Am. St. Rep. 858, 48 Atl. 1033; Gunderson, as rec'r, etc. v. Swarthout, 104 Wis. 186, 76 Am. St. Rep. 860, 80 N. W. 465 ; Lord v. Detroit Savings Bank, 132 Mich. 510, 93 N. W. 1063. See Equitable Guarantee & Trust Co. as trustee, etc. v. Knowles, 8 Del. Ch. 106, 67 Atl. 961. For a full collection of the au- thorities as to what are, and what are not, fixtures, see ante, §§ 490, 491, 492. See Walker v. Shertnan, 20 Wend. (N. Y.) 636; also Pot- ter V. Cromwell, 40 N. Y. 287, 100 Am. Dec. 485; Butler v. Page, 48 Mass. (7 Mete.) 40, 39 Am. Dec. 757; Winslow v. Merchants' Ins. Co. 45 Mass. (4 Mete.) 306, 38 Am. Dec. 368; Noble v. Bosworth, 36 Mass. (19 Pick.) 314; Crane v. Brigham. 11 N. J. Eq. (3 Stockt.) 29; Tcaff v. Hewitt, 1 Ohio St. 511, 529, 530, 59 Am. Dec. 734; Christian V. Dripps, 28 Pa. St. 271; Hill v. Wyntworth, 28 Vt. 428; Walmsley V. Milne, 7 C. B. N. S. 115, 29 L. J. C. P. 97; 6 Jur. N. S. 125, 97 Eng. C. L. 114; Lancaster v. Eve, 5 C. B. N. S. 717, 28 L. J. C. P. 235, 5 Jur. N. S. 683, 94 Eng. C. L. 717. As to removed fixtures, see ante, § 302. ^^ Bass Foundry, &c. Works v. Gallentine, 99 Ind. 525. ^^Snedeker v. Warring, 12 N. Y. 170; Rice v. Dewey, 54 Barb. (N. Y.) 455; Gardner v. Finley, 19 Barb. (N. Y.) 317; Sullivan v. Toole, 26 Hun (N. Y.) 203; Phin- ney v. Day, 76 Me. 83; Corliss v. McLagin, 29 Me. 115; Butler v. Page, 48 Mass. (7 Mete.) 40. 39 Am. Dec. 757; Winslow v. Mer- chants' Ins. Co. 45 Mass. (4 Mete.) 306, 38 Am. Dec. 368; Peirce v. Goddard, 39 Mass. (22 Pick.) 559, 33 Am. Dec. 764; Curry v. Schmidt, 54 Mo. 515; Powers v. Dennison, 30 Vt. 752; Preston v. Briggs. 16 Vt. 124. See Williams v. Chicago Exhibition Co. 188 III. 19, 58 N. E. 611. 1046 MORTGAGE FORECLOSURES. |[§ 715 § 715. Exceptions to above rule. — To this general rule, however, there are some exceptions, as where chattels are attached to real estate with the intention that they shall not thereby become a part of the freehold; such intention will control, as a general rule, and a mortgage of the real estate will not bind such chattels.®^ And it has been held that a mortgage will not bind personal property which has been attached to the freehold subsequently to the execution of the mortgage, where equities in favor of third persons require that it should continue to be considered as personal property.^' It is well settled that where, by the express agreement of the owner of the equity of redemption and the owner of chattels affixed to the land, such chattels are to remain personal prop- erty, they will not become a part of the realty, but will be subject to removal by the owner at any time.®' In Rowland v. West,®^ it is held that a purchaser at a sale upon foreclosure of a mortgage upon a mill to which chattels have been affixed since the execution of the mortgage, cannot recover such chattels from the mortgagee in a mortgage upon such chattels, executed and duly filed before the execution of the real estate mortgage, and before the chattels were con- verted into fixtures. A greenhouse with furnaces placed on leased property by the tenant with the intention of removing the same when the lease expires, and which can be removed without injury to the estate, will not pass to the purchaser on foreclosure against the landlord.^" B6 See Sheldon v. Edzvards, 35 N. 13 Am. Rep. 537; Ford v. Cobb, 20 Y. 279; Ford v. Cobb, 20 N. Y. 344; N. Y. 344; Mott v. Palmer, 1 N. Bernheimer v. Adams, 70 App. Div. Y. 564; Farrar v. Chauffet'ete, 5 114, 75 N. Y. Supp. 93. Den. (N. Y.) 527; Smith v. Ben- 67 See Tifft V. Norton, 53 N. Y. son, 1 Hill (N. Y.) 176. See Con- 377, 13 Am. Rep. 537; Voorhees v. dit v. Goodzvin, 44 Misc. 312, 89 N. McGinnis, 48 N. Y. 278. See also Y. Supp. 827. /. L. Mott Iron Works v. Middle 59 62 Hun (N. Y.) 583, 17 N. Y. States Loan, Building & Construe- Supp. 330, 43 N. Y. S. R. 698. Hon Co. 17 App. D. C. 584. eo /^^a'c^ v. Latshaw, 15 Colo. 68 Tifft V. Horton, S3 N. Y. 377, App. 420, 62 Pac. 627. S 716J DELIVERING DEED. 1047 Chandeliers and brackets placed in a house by one other than the owner of the property are moveables and do not pass to the purchaser of the property at foreclosure sale.^^ § 716. All permanent improvements pass under ref- eree's deed. — All additions of a permanent character by way of improvements made on mortgaged premises by the mortgagor or the owner of the equity of redemption, are re- garded as part of the mortgaged estate and will inure to the benefit of the holder of the mortgage, and will pass to the pur- chaser on a foreclosure sale.^^ Thus, where a mortgagor, v^hile the owner of the equity of redemption, erected a house upon the mortgaged premises, without any agreement with the mortgagee, it was held that it became a part of the realty and passed with it to the purchaser at the sale on the fore- closure of the mortgage ; ^^ and the same rule has been held 61 L'Hote & Co. V. Fulham, 51 La. Ann. 780, 25 So. 655. ^^ Baird v. Jackson, 98 111. 78; Wood V. Whelen, 93 111. 153 ; Engle- hart-Hitchcock Co. v. Central In- vestment Co. 136 Ga. 564, 71 S. E. 787. See Osark v. Adams, 73 Ark. 227, 83 S. W. 920; Baird v. Jackson, 98 111. 78; Wood v. IVhelen, 93 111. 157; Matzon v. Griffin, 78 111. 477; Dooley v. Crist, 25 III. 551; Mann v. Mann, 49 111. App. 472; Townsend V. Payne, 42 La. An. 909, 8 So. 626; Partridge v. Hemenway, 89 Mich. 454, 28 Am. St. Rep. 322, 50 N. W. 1084; Higginbottom v. Ben- son, 24 Neb. 461, 8 Am. St. Rep. 211, 39 N. W. 418; Turner v. Me- bane, 110 N. C. 413, 28 Am. St. Rep. 697, 14 S. E. 974; Dakota Loan & T. Co. V. Parmalee, 5 S. D. 341, 58 N. W. 811. Personalty aflfixed to freehold cannot be claimed by the purchaser where, by express agreement be- tween the mortgagor and the owner of the chattel, its character as per- sonalty was not to be changed, but was to continue and be subject to the right of removal by such owner on failure of performance of con- ditions of sale. Brand v. McMahon, 38 N. Y. S. R. 576, 15 N. Y. Supp. 39. The supreme court of Louisiana, in Townsend v. Payne, 42 La. An. 909, 8 So. 626, say that movable property placed upon a plantation before the sale of an undivided half thereof, together with the movable property, to one who executes his purchase-money mortgage therefor, is liable to seizure by the holder of notes secured by the mortgage ; but movable property placed upon it by the vendor and vendee after enter- ing into a planting partnership is not so liable. 6^ Matzon V. Griffin, 78 111. 477; Dooley v. Crist, 25 111. 551. 1048 MORTGAGE FORECLOSURES. [§ 716 to apply to a building erected upon mortgaged premises by the husband of the mortgagor.^* Where a mortgagor erected a frame building by the side of his mill, to be used as an office in connection with the mill, the building was held to be a fixture, although it was erected after the mortgage was given and was intended to be only temporary, and was neither attached to the mill nor secured to the ground, but rested upon wooden blocks stand- ing upon the surface of the earth.^^ Where the owner of the equity of redemption makes improvements upon land that is mortgaged, he will not be entitled to an allowance for them as against the mortgagor, but in some cases he may be allowed for such improvements out of the surplus moneys.®^ The mortgagor is not entitled to any abatement for expenses incurred for betterments ^' or improvements of any kind.*' 64 Wright v. Gray, 73 Me. 297. 65 State Savings Bank v. Kerche- val, 65 Mo. 682, 27 Am. Rep. 310. See also Butler v. Page, 48 Mass. (7 Mete.) 40, 39 Am. Dec. 757. As to what improvements are fix- tures see Stockwell v. Campbell, 39 Conn. 362, 12 Am. Rep. 393 ; Arnold V. Crowder, 81 111. 56, 25 Am. Rep. 260; Ottumwa Woolen Mill Co. v. Hawlay, 44 Iowa, 57, 24 Am. Rep. 719; McConnell v. Blood, 123 Mass. 47, 25 Am. Rep. 12; Richardson v. Borden, 42 Miss. 71, 2 Am. Rep. 595 ; Jarechi v. Philharmonic So- ciety, 79 Pa. St. 403, 21 Am. Rep. 78; Meigs' Appeal, 62 Pa. St. 28, 1 Am. Rep. 372; Hutchins v. Mas- tcrson, 46 Tex. 551, 26 Am. Rep. 286. 66 Wharton v. Moore, 84 N. C. 479, Z7 Am. Rep. 627. See Rice v. Dewey, 54 Barb. (N. Y.) 455; Union Water Co. v. Murphy, 22 Cal. 621; Baird v. Jackson, 98 111. 78; Martin v. Beatty, 54 Ilf. 100; McCumber v. Oilman, 15 111. 381 ; Childs V. Dolan, 87 Mass. (5 Al- len) 319. See also Decker v. Zeluff, 23 App. Div. 107, 48 N. Y. Supp. 385. 67 See 2 Kerr on Real Prop. § 1316. 68 Mann v. Mann, 49 111. App. 472 ; Dakota Loan & T. Co. v. Parmalee (S. D.) 58 N. W. 811. Changing and remodeling a mort- gaged house, by one upon whose premises it has been moved by a grantee of the mortgagor, newly plastering and completely finishing the same, and adding a new addi- tion and new porches thereto, and placing the entire building on a stone foundation, at a cost of about $600, does not destroy the identity of the mortgaged building so as to defeat the mortgagee's right to sub- ject it to the payment of so much of his mortgage debt as remains un- paid after exhausting the mort- gaged lot on which the building 717] DELIVERING DEED. 1049 § 717. All emblements pass under referee's deed. — The crops growing on the land, as well as the land, are held as a security for the mortgage debt,®^ and on the foreclosure of the mortgage, whatever crops are then growing upon the mortgaged premises, even if planted subsequently to the mak- ing of the mortgage, will pass to the purchaser at the sale, whether they were planted by the mortgagor or his tenant,'" free from all claim upon them by such mortgagor or tenant ; '^ originally stood. Dakota Loan & T. Co. V. Parmalee, 5 S. D. 341, 58 N. W. 811. A bona fide purchaser at a fore- closure sale of a senior mortgage, the junior mortgagees not having been made parties, is, in a suit against him by the junior mort- gagees to require him to redeem, entitled to credit for improve- ments, and should not be charged with the rental value of the prem- ises during his possession. Higgin- bottom V. Benson, 24 Neb. 461, 8 Am. St. Rep. 211, 39 N. W. 418. A bona fide occupant under claim of title, is entitled to com- pensation, at least as a set-off, against mesne profits ; but knowl- edge or notice of adversary rights is fatal to the claim for compensa- tion, and a mortgagee who repudi- ates the relation, or a purchaser from him with notice, is regarded as a wrong-doer, and is not en- titled to compensation. Gresham v. Ware, 79 Alabama, 192. The purchaser of a railroad un- der a mortgage cannot claim to use a depot under a contract made by the mortgagor after the execu- tion of the mortgage without pay- ment of the rental provided for in the contract. St. Joseph Union De- pot Co. V. Chicago, R. I. & P. R. Co. 131 Mo. 291, 31 S. W. 908. 69 See Gillett v. Balcom, 6 Barb. (N. Y.) 370; Shepard v. Philbrick, 2 Den. (N. Y.) 174; Lane v. King, 8 Wend. (N. Y.) 584, 24 Am. Dec. 105; Toby v. Reed, 9 Conn. 216; Jones V. Thomas, 8 Blackf. (Ind.) 428; JJughes v. Graves, 1 Litt. (Ky.) 317; Winslow v. Merchants' Insurance Co. 45 Mass. (4 Mete.) 310, 38 Am. Dec. 368; Cassilly v. Rhodes, 12 Ohio, 88; Crews v. Pen- dleton, V. Leigh (Va.) 297, 305, 19 Am. Dec. 750. ■^o And where a tenant, who rent- ed the land pending a foreclosure, sows a crop of wheat after judg- ment in foreclosure, and the wheat is not ready to harvest until after the foreclosure sale and the sheriff's deed passes, as against the tenant, the crop belongs to the purchaser at such sale. Goodwin v. Smith, 49 Kan. 351, 31 Pac. 153, 17 L.R.A. 284, 33 Am. St. Rep. Z72,. See Nichols V. Lappin, 105 Mo. App. 401, 79 S. W. 995 ; Rardin v. Bald- win, as adm'r, etc. 9 Kan. App. 516, 60 Pac. 1097. 71 Gillett V. Balcom, 6 Barb. (N. Y.) 370. Wallace v. Cherry, 32 Mo. App. 436; Skilton v. Harrel, 5 Kan. App. 753, 48 Pac. 177; Reiley v. Carter, 75 Miss. 798, 65 Am. St. Rep. 621, 23 So. 435; Jones v. Adams, 2>7 Or. 473, 50 L.R.A. 388, 82 Am. St. Rep. 766, 62 Pac. 16. 1050 MORTGAGE FORECLOSURES. [§ 717 and on a proper application, under some circumstances, the court will provide for their preservation until possession is given to the purchaserj^ But the purchaser at a foreclosure sale cannot, before the sale is confirmed and before he has acquired possession of the land, maintain an action in re- plevin for crops growing thereon at the time of the sale but afterwards severed from the premises by the person in pos- session.'' Where, however, the foreclosure is instituted and a sale is ordered after the severance of the crops,''* or where a stand- ing crop is fully matured at the time of the sale,''^^ the title thereto will not pass, under such proceedings, to the mort- gagee or the purchaser. The purchaser at a mortgage fore- closure sale will be entitled to the crops growing at the time of the sale, in preference to a person claiming under the mortgagor whose claim originated subsequently to the execu- tion of the mortgage.'^ And it has been held that a person purchasing the premises upon the foreclosure of a mortgage is entitled to the growing crops in preference to a person pur- See Shepard v. Philbrick, 2 Den. 87 Am. Dec. 90; Codrington v. (N. Y.) 174; Lane v. King, 8 Johnstone, 1 Beav. 520. Wend. (N. Y.) 584, 24 Am. Dec. i^ Richards v. Knight, 78 Iowa, 105; Jones v. Thomas, 8 Blackf. 69, 42 N. W. 584, 4 L.R.A. 453; (Ind.) 428; Ledyard v. Phillips, 47 Caldwell v. Alsop, 48 Kan. 571, 29 Mich. 305; Ruggles v. First Nat. Pac. 1150, 17 L.R.A. 782. Bank of Centrevillc, 43 Mich. 192; ''^Shepard v. Philbrick, 2 Den. Howell V. Schenck, 24 N. J. L. (4 (N. Y.) 174; Stewart v. Doughty, Zab.) 89; Crews v. Pendleton, 1 9 Johns. (N. Y.) 112; Whipple v. Leigh (Va.) 297, 19 Am. Dec. 750. Foot, 2 Johns. (N. Y.) 418, 3 Am. But see Aldrich v. Bank of Ohiowa, Dec. 442; Lane v. King, 8 Wend. 64 Neb. 276, 57 L.R.A. 920, 97 Am. (N. Y.) 584, 24 Am. Dec. 105; St. Rep. 643, 89 N. W. 772 ; Co.y.ye//, Anderson v. Strauss, 98 111. 485; as rec'r, etc. v. Ashley, 3 Neb. Jones v. Thomas, 8 Blackf. (Ind) (Unof.) 787, 92 N. W. 1035. 428; Howell v. Schenck, 24 N. J. "^^ Ruggles v. First Nat. Bank of L. (4 Zab.) 89; Parker v. Storts, 15 Centreville, 43 Mich. 192. Ohio St. 351; Crews v. Pendleton, 73 Woehler v. Endter, 46 Wis. 1 Leigh (Va.) 297, 19 Am. Dec. 301. 750 ; Wootton v. White, 90 Md. 64, 7* Buckout V. Swift, 27 Cal. 438, 78 Am. St. Rep. 425, 44 Atl. 1026. § 717] DELIVERING DEED. 1051 chasing the same premises at a sale subsequently made under a decree in bankruptcy." But when the crops are reserved at a sale by special an- nouncement, duly authorized, they will not pass to the pur- chaser.''^® This rule is placed upon the grounds, that while the mortgagee is not bound to sell in parcels, unless the mort- gaged premises are described in parcels,'^ yet that he may do so where the premises are so situated that he can sell in parcels; that he may, if he chooses, even release a portion of the premises and sell the balance ; that there is no reason why he may not sell the same portion before releasing any; and that in such case the mortgage is a lien upon the whole prem- ises, including the growing crops, and at the time of the sale the mortgagee may announce that he will not sell the growing crops, but will sell the balance.*" But the sheriff, or other officer making the sale, has no authority to reserve the growing crops, and where he makes such a reservation, without authority contained in the mort- gage or in the decree of sale, the reservation will be without effect and the sale will pass both the land and the growing crops to the purchaser; and in those cases where he has au- thority, such reservation will probably be of no avail unless it is expressed in his deed.*^ Where a vendee of the mortgagor assumes the payment of a mortgage on the lands, he occupies the position of a mort- gagor in possession, and the growing crops planted by him while in possession pass to the purchaser on foreclosure sale as accessories to the lands.'^ But one who buys a fully matured crop standing on the mortgaged premises and un- harvested, from the mortgagor before the commencement of ''''Gillett V. Balcom, 6 Barb. (N. ^'^ Sherman v. Willett, 42 N. Y. Y.) 370. 146. 78 Sherman v. Willett, 42 N. Y. 81 Howell v. Schenck, 24 N. J. L. 146. (4 Zab.) 89. '9 See Griswold v. Fowler, 24 82 Hayden v. Burkemper, 101 Mo. Barb. (N. Y.) 135, 4 Abb. (N. Y.) 644, 20 Am. St. Rep. 643, 14 S. W. Pr. 238; Lamerson v. Marvin, 8 767, aflf'g 40 Mo. App. 346. Barb. (N. Y.) 9. 1052 MORTGAGE FORECLOSURES. [§ 718 foreclosure proceedings but after default on the mortgage, obtains a good title to such crop as against the receiver ap- pointed in such foreclosure proceedings, or the purchaser on sale in foreclosure.®^ It has been held, however, that one who purchases on execution sale nursery trees and bushes raised for sale on mortgaged premises, after foreclosure and sale perfected by the passing of the deed, cannot take them away without liability to the mortgagee, or the purchaser under the foreclosure sale, although he might have taken them away before the title under such sale was perfected.** § 718. Right of purchaser to rents. — The mortgagor will be etnitled to the possession of the land and to the rents and profits thereof, until the mortgagee takes possession or institutes proceedings to subject the rents and profits to his claim.®^ Upon a mortgage foreclosure sale the purchaser does 83 Caldwell v. Alsop, 48 Kan. 571, 29 Pac. 1150, 17 L.R.A. 782. ^^Battcrman v. Albright, 122 N. Y. 484, 25 N. E. 856, 11 L.R.A. 800, 19 Am. St. Rep. 510. 85 Rudolph V. Herman, 4 S. D. 283, 56 N. W. 901 ; Grosvenor v. Bethel, 93 Tenn. 577, 26 S. W. 1019; Butler V. Page, 48 Mass. (7 Mete.) 40, 42, 39 Am. Dec. 757. See Hele v. Bex- ley, 20 Beav. 127; Higgins v. York Buildings Co. 2 Atk. 107; Drum- mond V. Duke of St. Albans, 5 Ves. 438; Colman v. Duke of St. Albans, 3 Ves. 25. See ante, § 681. In Delaware purchaser entitled to rents accruing after day of sale on the foreclosure of mortgage, under a decree of the United States circuit court; the Delaware statute for the apportionment of rents in the case of sheriff's sales does not apply. Williams v. Cochran, 8 Houst. (Del.) 420, 31 Atl. 1050. In South Dakota mortgagor of property sold under foreclosure is entitled to the rents and profits thereof during the year of redemp- under Dak. Comp. L. § 5431, pro- viding that the possession of the premises sold under foreclosure shall not be delivered to the pur- chaser until after the expiration of one year from the sale. Rudolph V. Herman (S. D.) 56 N. W. 901. A purchaser who fails to record within thirty days after the expi- ration of the equity of redemption, and who leaves the debtor in pos- session of the property, cannot claim the crops thereon which are attached as the debtor's property. Wolcott V. Hamilton, 61 Vt. 79, 17 Atl. 39. The purchaser at a sale of real estate under a trust deed is not entitled to the rents accruing on the property between the date of his purchase and his acceptance of a deed and going into possession, where he paid only a portion of the 718] DELIVERING DEED. 1053 not acquire the title to the premises nor a right to the posses- sion thereof, until the deHvery of the deed by the officer mak- ing the sale; until that time the owner of the equity of re- demption will be entitled to the possession of the land and to its rents and profits. ^^ The purchaser is generally not entitled to possession, nor to the rents and profits, until he has demanded such posses- sion under his deed.®''^ Where a person is in possession under a purchase at a former foreclosure sale which was not con- firmed, he will be entitled to the rents only from the date of the confirmation of the report of the last sale.*^ A pur- chaser, under a referee's deed conveying the premises sub- ject to "leases, if any, tenancies of the present occupants," cannot maintain an action against a tenant in possession who has never attorned to him.^^ A mortgagee who purchases the equity of redemption on the foreclosure sale of his mortgage is not liable to a junior mortgagee for rents and profits.^" Until such time as the deed is delivered the tenant will not be affected by the mortgage foreclosure proceedings.^^ But as soon as the title passes the purchaser is entitled to the rents purchase money down, without pay- ing any interest on the balance, and his delay in obtaining possession was his own fault. Grosvenor v. Bethel, 93 Tenn. 577, 26 S. W. 1019. ^^ Mitchell V. Bartlett, 51 N. Y. 447, aff'g 52 Barb. (N. Y.) 319; Varniim v. Winslow, 106 Iowa, 287, 76 N. W. 708 ; Condon v. Marlcy, 7 Kan. App. 383, 51 Pac. 924. See Jackson V. King, 62 Kan. 850, 62 Pac. 655. See also Mutual Life Ins. Co. V. Blach, 4 Abb. (N. Y.) N. C. 200; Aster v. Turner, 11 Paige Ch. (N. Y.) 436, 43 Am. Dec. 766; Clason v. Corley, 5 Sandf. (N. Y.) 447; Nichols v. Foster, 9 N. Y. Week. Dig. 468; Taliaferro V. Gay, 78 Ky. 496 ^"J Mitchell V. Bartlett, 51 N. Y. 447, aff'g 52 Barb. (N. Y.) 319; As tor V. Turner, 11 Paige Ch. (N. Y.) 436, 43 Am. Dec. 766; Clason V. Corley, 5 Sandf. (N. Y.) 447; Continental Insurance Co. v. Reeve, 134 N. Y. Supp. 78. 8' Taliaferro v. Gay, 78 Ky. 496. See Mitchell v. Bartlett, 51 N. Y. 447, aff'g 52 Barb. (N. Y.) 319. See ante, § 681. 89 Wacht V. Erskine, 61 Misc. 96, 113 N. Y. Supp. 130. so Gault V. Equitable Trust Co. 100 Ky. 578, 38 S. W. 1065. 91 See Richards v. Knight, 78 Iowa, 69, 42 N. W. 584, 4 L.R.A. 453; Whalen v. White, 25 N. Y. 462. 1054 MORTGAGE FORECLOSURES. [§ 719 and profits, and may recover the rent from a lessee of the mortgagor as the same falls due under the lease, notwith- standing payment thereof by the leasee to the mortgagor after notice of the rights of such purchaser ; '^ and in those cases where the rents have been paid in advance to a receiver pendente lite, to a time beyond the delivery of the deed upon the sale under the mortgage, the purchaser is entitled to all rents from the time the deed was delivered.^^ There are few general rules of law without exceptions, and there is an exception to the above rule, in those cases where a mortgagee of lands purchases them at his own foreclosure sale for the full amount of the debts and costs. In such a case he is not entitled to the rents and profits previously col- lected and in the hands of a receiver appointed in the fore- closure proceedings, nor to rents paid before he obtains title by deed.'* § 719. Same — During period of redemption. — Where the rent becomes due and payable between the day of sale and the time when the purchaser becomes entitled to the posses- sion, it belongs to the owner of the equity of redemption, and not to the purchaser at the sale.'^ And this is true although 92 Dunton v. Sharpe, 70 Miss. 850, 11 So. 168; Cowen v. Arnold, 58 Hun (N. Y.) 437, 12 N. Y. Supp. 601, 35 N. Y. S. R. 134; Clement V. Shipley, 2 N. D. 430, 51 N. W. 414. He is entitled to rents accruing under a lease for a term of years, as against one to whom the mortgagor assigned, after the execution of the mortgage, rent notes given before its execution for the rent of each year, since the rents pass under the mortgage as a hereditament. Dunton v. Sharpe, 70 Miss. 850, 11 So. 168. A different rule prevails in Texas, where a mortgagor can by leasing the premises and assigning his claim for rent, sever the rent from the land, so that a sale of the lat- ter will not convey a right to de- mand the rent subsequently falling due under the lease. Security Mortg. & T. Co. v. Gill, 8 Tex. Civ. App. 358, 27 S. W. 835. 93 Cowen v. Arnold, 58 Hun (N. Y.) 437, 35 N. Y. S. R. 134, 12 N. Y. Supp. 601. ^'^ Pacific Mut. L. Ins. Co. v. Beck (Cal.) 35 Pac. 169. ^^Eggleston v. Had field, 90 111. App. 11; Kaston v. Paxton, 46 Or. 308, 114 Am. St. Rep. 871, 80 Pac. § 719] DELIVERING DEED. 1055 the owner does not redeem.^® In some states however, under statutory provisions, the rents and profits go to the pur- chaser.^''' It has also been held, under statutory provision, that where a judgment debtor fails to redeem, he shall be liable to the purchaser for the rent of the premises, or for the use and occupation thereof, from the date of the sale.^' But the general rule seems to be that where the amount realized on the sale of the premises is sufficient to satisfy the mortgage debt, the owner of the equity of redemption is en- titled to the possession of the land and to the rents and profits accruing therefrom, as against the purchaser.^^ And this is true although the instrument expressly provides that the rents and profits shall belong to the purchaser,^ since the rule is held to be one of public policy, the benefit of which cannot be waived by the parties to the mortgage.^ The contrary rule prevails however where the land sells for less than the mort- 209; Bartlett, as trustee, etc. v. Am- berg, as rec'r, etc. 92 111. App. 377; Traer v. Fowler, 144 Fed. 810, 75 C. C. A. 540; Astor v. Turner, 11 Paige Ch. (N. Y.) 436, 43 Am. Dec. 766. See Whalin v. White, 25 N. Y. 462; Miner v. Beekman, 11 Abb. (N. Y.) Pr. N. S. 147, 42 How. (N. Y.) Pr. 33, 33 N. Y. Supr. Ct. (1 J. & S.) 67; Clason v. Corley, 5 Sandf. (N. Y.) 447. See ante, § 681. ^^ Dix V. Lohman, 105 Mo. App. 619, 80 S. W. 51. s'Cal. Code Civ. Proc. § 707; Yndart v. Den, 125 Cal. 85, 57 Pac. 761; Walker v. McCusker, 71 Cal. 594; Wash. Rem. & Bal. Code § 602, Merz V. Mehner, 67 Wash. 135, 120 Pac. 893. Rev. Code § 5549, Whithed v. 5"^ Anthony & Dakota Elevator Co. 9 N. D. 224, 50 L.R.A. 254, 81 Am. St. Rep. 562, 83 N. W. 238. 98 Gale V. Parks, 58 Ind. 117. See Clements v. Robinson, 54 Ind. 599. ^^Haigh v. Carroll, 209 111. 576, 71 N. E. 317; Cohn v. Franks, 96 111. App. 206 ; World Building, Loan & Investment Co. v. Marlin, 151 Ind. 630, 52 N. E. 198; Innes v. Linscheid, 126 111. App. 27; Tosetti Brewing Co. v. Goebel, 23 Ind. App. 99, 54 N. E. 813. See Talcott v. Peterson, 6Z 111. App. 421 ; Burleigh v. Keck, 84 111. App. 607. But see Equitable Trust Co. v. Wilson, 200 111. 23, 65 N. E. 430. 1 Schaeppi v. Bartholomae, 217 111. 105, 1 L.R.A.(N.S.) 1079, 75 N. E. 447 ; Haigh v. Carroll, 209 111. 576, 71 N. E. 317. See Standish v. Murgrove, 223 111. 500, 79 N. E. 161. z Dennis v. Moses, 18 Wash. 537, 40 L.R.A. 302, 52 Pac. 333. 1056 MORTGAGE FORECLOSURES. [§ 720 gage debt.^ However after the deficiency is paid off, the rents belong to the owner of the equity of redemption.* § 720. Same — Accounting for rents and profits. — The purchaser of lands on execution remaining in possession of land during the year following the sale of property under mortgage foreclosure is liable to account for the rent to the foreclosure purchaser.^ But in those cases where a sale under a power in a mortgage is completed, and the mortgage extinguished, the acceptance by the purchaser of a formal as- signment of the mortgage will not cut down his right to the rents and profits which had become absolute as against the mortgagor ; and he will not be liable to an action by the mort- gagor for the sum due on the purchase.^ It is said by the supreme court of Washington ' that under the statute of that state,® providing that the purchaser from the day of sale until a redemption, and the redemptioner from the day of redemption until another redemption, shall be entitled to the possession of the property, or to the rents or value of the use and occupation during the same period, if in possession of a tenant, a purchaser at a sale under foreclosure of a mortgage cannot be required to account at the suit of the mortgagor to redeem, for rents and profits arising from the use and occu- pation of the premises during the interval between the sale and redemption. It is thought that it is not the duty of a purchaser from the mortgagee under a power of sale in the mortgage, to give notice to the mortgagors in respect to the liability of the mort- 8 Russell V. Bruce, 159 Ind. 553 ; Had field, 178 111. 532, 52 N. E. 875. First National Bank v. Illinois Steel ^ Edwards v. Johnson, 105 Ind. Co. 174 III. 140, 51 N. E. 200; Roach 594, 5 N. E. 716. V. Glos, 181 111. 440, 54 N. E. 1022. e Walpole v. Quirk, 143 Mass. 72, But see Ray v. Henderson, 210 111. 9 N. E. 9. ZQS,7\^.^.S79; Standishv. Mus- ^ Hardy v. Herriott, 11 Wash. grove, 223 111. 500, 79 N. E. 161. 460, 39 Pac. 958. ^Townsend v. Wilson, 155 111. « 2 Hill's Wash. Code, § 519. App. 303 ; Stevens, as rec'r, etc. v. § 7211 DELIVERING DEED. 1057 gagee to account to them for the rents and profits from the time he took possession under an abortive sale to himself until a valid exercise of the power, or to see to the application of the purchase money.' § 721. Appeal and reversal — Effect on purchaser's title. — If the court had jurisdiction of the parties and of the subject matter of the action and power to render a judg- ment, it will not be a valid objection to the title by the pur- chaser at the sale made under a decree of foreclosure, that such judgment was erroneous; ^^ his title will not be affected by any defects in the proceedings which render the judgment irregular, and in consequence of which, it may be set aside or reversed.^^ But where a sale is made under a void decree, ^ Henderson v. Astwood, P. C. A. C. 150. 10 Deforest v. Farley, 62 N. Y. 628; Storm v. Smith, 43 Miss. 497; Armstrong v. Humphreys, 5 S. C. 128. 11 Brevoort v. Brevoort, 70 N. Y. 136, 140; Deforest v. Farley, 62 N. Y. 628. See Clemens v. Clem- ens, Z7 N. Y. 59, 72; Packer v. Rochester & S. R. R. Co. 17 N. Y. 288; Blakeley v. Calder, 15 N. Y. 617; Brainard v. Cooper, 10 N. Y. 359; H olden v. Sackett, 12 Abb. (N. Y.) Pr. 473; McMurray v. McM ar- ray, 60 Barb. (N. Y.) 117, 127; Gaskin v. Anderson, 55 Barb. (N. Y.) 259, 262, 7 Abb. (N. Y.) Pr. N. S. 1, 7; Breese v. Bange, 2 E. D. Smith (N. Y.) 474; Wood v. Jackson, 8 Wend. (N. Y.) 9, 22 Am. Dec. 603; Estate of Fenn, 8 N. Y. Civ. Proc. Rep. 206, 211; sub nom. Price v. Fenn, 3 Dem. (N. Y.) 341. See also Alvord v. Beach, 5 Abb. (N. Y.) Pr. 451; Silleck V. Heydrick, 2 Abb. (N. Y.) Pr. N. S. 57; Hening v. Punnett, Mortg. Vol. IT.— 67. 4 Daly (N. Y.) 543; Graham v Bleakie, 2 Daly (N. Y.) 55; Jordan V. VanEpps, 19 Hun (N. Y.) 533, Herbert v. Smith, 6 Lans. (N. Y.) 493; Minor v. Betts, 7 Paige Ch (N. Y.) 597; Coit v. McRcynolds 2 Robt. (N. Y.) 655; Darvin v, Hatfield, 4 Sandf. (N. Y.) 468; In re Luce, 17 N. Y. Week. Dig. 35; Biickmaster v. Carlin, 4 111. (3 Scam.) 104; Bustard v. Gates, 4 Dana (Ky.) 429; Gossom v. Don- aldson, 18 B. Mon. (Ky.) 230, 68 Am. Dec. 723; Benning field v. Reed, 8 B. Mon. (Ky.) 105; Lampton v. Usher's Heirs, 7 B. Mon. (Ky.) Wiltse Mortg— 2-8-13— Fred 57 ; Gray v. Brignardcllo, 68 U. S. (1 Wall.) 627, 17 L. ed. 693; Bank of U. S. v. Voorhees, 1 McL. C. C. 221 ; Chamblee v. Broughton, 120 N. C. 170, 27 S. E. 111. See also Schieck v. Donahue, 81 App. Div. 168. 80 N. Y. Supp. 739; Hu- biugcr v. Coitral Trust Co. of Nezv York. 94 Fed. 788, 36 C. C. A. 494; McGregor v. Eastern Building &■ Loan Assc. 5 Neb. (Unof.) 563, 99 1058 MORTGAGE FORECLOSURES. [§ 721 the purchaser will obtain no title. ^'^ The rule that a purchaser acquires a valid title, although the decree may be reversed on appeal, does not apply to an interlocutory decree nor to a conditional order, even if the conditions have not been ful- filled ; " nor does it apply where the party purchases on be- half of the judgment creditors.^* The rule that a bona fide purchaser at a foreclosure sale will receive a good title, although the proceedings were erro- neous or irregular, holds good where the purchaser was a party to the suit,^^ even though such purchaser had notice at the time of the sale, that an effort would be made to reverse the decree," and though an appeal had been taken from the judgment at the time of the sale, on which the judgment was subsequently reversed, a stay of proceedings not having been obtained pending such appeal." It has been held that where a person, not a party to the suit, is a purchaser at a foreclosure sale, the law does not N. W. 509. But see Woodard v. Bird, 105 Tenn. 671, 59 S. W. 143. ^2 Gossotn V. Donaldson, 18 B. Mon. (Ky.) 230, 68 Am. Dec. 723; Storm V. Smith, 43 Miss. 497. ^3 Gray v. Brignardello, 68 U. S. (1 Wall.) 627, 17 L. ed. 693. 1* Shelden v. Pruessner, 52 Kan. 593, 35 Pac. 204. Thus, the supreme court of Cali- fornia, in the case of Withers v. Jacks (79 Cal. 297, 12 Am. St. Rep. 143, 21 Pac. 824), say that in a con- test between foreclosing mortgag- as to priority, where the one de- feated takes an appeal without ask- ing for or receiving a stay of pro- ceedings, while the other mortgage is being foreclosed; and the judg- ment is reversed because of defects in the findings, and it is adjudged that the appeal does not affect the mortgagor in any manner ; the fore- closure of the mortgage which is given priority by the judgment is final, and a purchaser thereunder holds a good title as against any prior proceeding by the other mort- gagee. A purchaser for judgment cred- itors is not entitled to the protection of Kansas Civil Code, § 467; pro- viding that the reversal of a judg- ment will not affect the title of a bona fide purchaser of land sold thereunder. Sheldon v. Pruessner, 52 Kan. 593, 35 Pac. 204. ^^Hening v. Punnett, 4 Daly (N. Y.) 543; Splahn v. Gillespie, 48 Ind. 397; Gossom v. Donaldson, 18 B. Mon. (Ky.) 230, 54 Am. Dec. 547. " Irwin V. Jeffers, 3 Ohio St. 389. ^"^ Hening v. Punnett, 4 Daly (N. Y.) 543. See Ebert, as ex'r, etc. v. Hanneman, 69 Misc. 223, 125 N. Y. Supp. 237. § 722'] DELIVERING DEED. 1059 require him to inspect the record and to see that it is free from errors ; " he is only required to ascertain that the court had jurisdiction, and that there is such a judgment or decree unreversed as would authorize the sale. The supreme court of Illinois said in the case of Fergus v. Woodworth,^^ that "if such were not the rule, no one would become a purchaser at a judicial sale, and all competition would cease, and the plaintiffs would become the purchasers at their own price. Stability and confidence must be given to judicial sales to the fullest extent compatible with the interests of the parties, as well the purchaser as the defendant." And it has been stated that a purchaser of property from a party to whom a deed under a foreclosure sale has regularly issued, is not affected by the revocation of the order confirm- ing the sale, under proceedings commenced after he had ac- quired his title, although the order of revocation was made at the same term of court as the order of confirmation.^" § 722. Delivering possession of premises to purchas- er. — A court of equity has authority to decree the posses- sion of land, where a controversy regarding the title thereto has been properly brought within its jurisdiction, ^^ and the law will enforce its decree by its officers for the delivery of actual possession, whenever in pursuance of the decree such possession ought to be delivered. ^^ The power of a court to give possession to the purchaser at a foreclosure sale was at one time doubted, but it was finally exercised by the court of chancery.^' 18 See Walter v. Bnigger, 78 S. 35, I. O. O. F. v. Evans, 176 Mo. W. 419. 310, 75 S. W. 914. 19 44 III. 374, 384. 22 Valentine v. Teller, Hopk. Ch. ^^Hollister v. Mann, 40 Neb. 572, (N. Y.) 422. 58 N. W. 1126. 23 See Bolles v. Duff, 43 N. Y. 21 Kershaw v. Thompson, 4 Johns. 469, 473, 41 How. (N. Y.) Pr. 358; Ch. (N. Y.) 609; Irvine v. McRee, Kershaw v. Thompson, 4 Johns. Ch. 5 Humph. (Tenn.) 556, 49 Am. (N. Y.) 609; Thompson v. Camp Dec. 468, 4 Kent Com. 184. See bell, 57 Ala. 188. State ex rel. Wyandotte Lodge, No. 1060 MORTGAGE FORECLOSURES. [§ 722 The New York court of appeals held, in the case of BoUes V. Duff,'^^ that by statute the court was given power over the whole subject, though the act was in a good degree declara- tory. It has been said that a court of equity would fall short of doing complete justice, unless it placed the purchaser at a mortgage foreclosure sale in possession, as well as gave him a deed of the premises. Where the person ejected from the possession of the premises was a party to the suit, or came into possession under a party to the suit pendente lite, he can make no objection to such an order.^^ It may now be regarded as well settled that courts of equity, in the exercise of their ordinary and general chancery juris- diction, where the possession of real property is involved, may, upon the consummation of a suit to enforce a lien there- on, do complete justice by putting a successful complainant into possession, if all the persons in interest were made par- ties to the suit; and that, on a sale in proceedings to fore- close a mortgage, or to enforce a lien, the court may extend the same relief to a purchaser under the decree of sale.^^ And the right of a purchaser to bring an action for the possession of the property sold is not effected by a delay of several years.^' Where the statute provides that the purchaser shall have possession of the property from the date of purchase until resale or redemption, unless it is in the possession of a tenant,^^ this right will be enforced by the court.^^ However, if a person, pending the suit, enters into posses- sion under one who did not derive his title to the premises from a party to the action, he cannot be turned out of posses- sion under the decree. So in the case of a foreclosure sale, 2443 N. Y. 469, 473. ^i Pere Marquette R. R. Co. v. 26 See Kershaw v. Thompson, 4 Graham, 136 Mich. 444, 99 N. W. Johns. Ch. (N. Y.) 609; Jones v. 408. See Prahl v. Rogers, 127 Wis. Hooper, 50 Miss. 514. See Creigh- 353, 106 N. W. 287. ton V. Paine, 2 Ala. 159. ^8 As does Was. Code Civ. Proc. ^^ Harding v. LeMoyne, 114 III. § 519. 65; Stittles v. Sewell, 105 Ga. 129, ^^ Debenture Corp. v. Warren, 9 31 S. E. 41. Wash. 312, 37 Pac. 451. § 723] DELIVERING DEED. 1061 if a person in possession shows a prima facie right thereto paramount to the mortgage, the court will not attempt to decide questions affecting his legal title, and the possession must then be sought by proceedings at law.^° It has been held in Wisconsin,^^ that the statutory provision requiring that the purchaser at a foreclosure sale be let into possession on pro- duction of the sheriff's deed, must be construed as defining the rights of such purchaser after the confirmation of the sale.^'^ It seems that in some states a purchaser at a fore- closure cannot demand possession until the report of the officer making the sale has been confirmed by the court.^^ The rule is different, however, in New York,^* and in Wash- ington 35 § 723. Possession obtained by summary process. — It is usually provided in every judgment of foreclosure and sale, that the purchaser be let into possession on production of the deed of the officer making the sale; whether this provision is inserted in the judgment or not, the purchaser will be entitled to possession on compliance with the terms of the sale, and the court will have power to put him in such possession.^® The purchaser will not be driven to an action at law to obtain ^Harding v. LeMoyne, 114 111. (N. Y.) 422; Yates v. Hambly, 2 65. Atk. 360. 31 Wis. Rev. Stat. 3169. The supreme court of Florida, in 32 Welp V. Gunther, 48 Wis. 543 ; the case of McLane v. Piaggie (24 Waehler v. Endter, 46 Wis. 301. Fla. 71, 3 So. 823), say that a pur- ^^ Howard v. Bond, 42 Mich. 131. chaser at a foreclosure sale should, 3* See ante, § 659. upon demanding possession of the 35 State ex. rel. Steele as rec'r. property purchased, exhibit to the etc. V. Nortlnvestern & Pacific party in possession the master's Hypotheek Bank, 18 Wash. 118, 50 deed; and a vendee of the pur- Pac. 1023. chaser should exhibit both such 36 Ludlow V. Lansing, Hopk. Ch. deed and that from the purchaser (N. Y.) 231; Dyer v. Kopper, 59 to him, if he intends to apply for a Vt. 477, 59 Am. Rep. 742, 9 Atl. 4, writ of assistance against such See Valentine v. Teller, Hopk. Ch. party. 1062 MORTGAGE FORECLOSURES. [§ 723 possession." The authority of the court to issue a process and to place the purchaser in possession, is placed upon the ground that it has power to enforce its own decrees and thus to avoid the circuity of vexatious litigation.®^ But where a party in possession was not a party to the foreclosure, and did not acquire his possession from a person who was bound by the decree, but who is a mere stranger and who entered into possession before the suit was begun, the court will have no power either under the statute or in- dependently of it to deprive him of possession by enforcing the decree.®^ A person obtaining possession by a legal pro- ceeding under a claim of right, will not be summarily dispos- sessed by an enforcement of the decree of foreclosure adverse to a party to the suit, the proceedings having been commenced prior to the filing of the bill of foreclosure, and he not being a party to the foreclosure.*" And a tenant in possession, who became such after the commencement of the suit, where he holds under a person not a party to the suit, who was lawfully in possession under a claim hostile to that derived under the mortgage, will not be dispossessed, although made a party to the suit for the pur- pose of barring an interest held by his wife in other premises covered by the mortgage, of which he was in possession and which he had delivered up in pursuance of the decree.*^ But ! ^''Ludlow V. Lansing, Hopk. Ch. over, 13 N. J. Eq. (2 Beas.) 220, (N. Y.) 231; Kershaw v. Thomp- 78 Am. Dec. 95. son, 4 Johns. Ch. (N. Y.) 609. See ^^ Ludlow v. Lansing, Hopk. Ch. VanHook v. Throckmorton, ^Vaigt 231; Jones v. Hooper, 50 Miss. 514. Ch. (N. Y.) 33; Frelinghuysen v. ^^ Meiggs v. Willis, 8 N. Y. Civ. Colden, 4 Paige Ch. (N. Y.) 204; Proc. 125; Boynton v. Jackway, 10 Suffern V.Johnson, 1 Paige Ch. (N. Paige Ch. (N. Y.) 307; VanHook Y.) 450, 19 Am. Dec. 440; McGown v. Throckmorton, 8 Paige Ch. (N. V. Wilkins, 1 Paige Ch. (N. Y.) Y.) 33; Frelinghuysen v. Colden, 4 120; Creightonv. Paine,2 Ala. 158; Paige Ch. (N. Y.) 204; Kessinger Bright v. Pennywhit, 21 Ark. 130; v. Whittaker, 82 111. 22; Benhard v. Horn V. Volcano Water Works, 18 Darrow, Walk. Ch. (Mich.) 519. Cal. 141 ; Skinner v. Beatty, 16 ^ Frelinghuysen v. Colden, 4 Cal. 156; Trabue v. Ingles, 6 B Paige Ch. (N. Y.) 204. Mon. (Ky.) 82; Schenck v. Con- ^^ New York Life Ins. & Trust § 725] DELIVERING DEED. 1063 where a person comes into possession pendente lite through a party to the suit, he will be bound by the decree in the same manner as the party whom he succeeds.*^ § 724. Provisions of Code for obtaining possession. — It is provided by the New York Code of Civil Procedure,*^ that where a judgment in an action relating to real property, allots to any person a distinct parcel of land, or contains a direction for the sale of real property, or confirms such an allotment or sale, it may also, except in a case where it is expressly prescribed that the judgment may be enforced by execution, direct the delivery of the possession of the prop- erty to the person entitled thereto. If a party or his represen- tative, or successor, who is bound by the judgment, withholds possession from a person thus declared to be entitled thereto, the court, besides punishing the disobedience as a contempt, may, in its discretion, by order, require the sheriff to put that person into possession. Such an order must be executed, as if it were an execution for the delivery of the possession of the property. § 725. Writ of assistance — When granted. — It was held in the recent case of Dyer v. Kopper,** that the execution of a decree of foreclosure giving possession, can be made by a summary process. A writ of assistance is an appropriate process to issue from a court of equity, to place a purchaser of mortgaged premises in possession under its decree of sale, after he has received the deed of the officer making the sale, as against parties who are bound by the decree, and who re- fuse to surrender possession pursuant to the directions of the court.*^ Co. V. Cutler, 9 How. (N. Y.) Pr. 742, 9 Atl. 4. See Ludlow v. Lan- 407. sing, Hopk. Ch. (N. Y.) 231. ^ Kessinger v. Whittaker, 82 111. ^5 Kershaiv v. Thompson, 4 Johns. 22. Ch. (N. Y.) 609; Terrell v. Allison, 43 § 1675. 88 U. S. (21 Wall.) 291, 22 L. ed. **59 Vt. 477, 489, 59 Am. Rep. 635; Watkins v. Jerman, 36 Kan. 1064 MORTGAGE FORECLOSURES. [§ 725 After a purchaser has complied with the terms of the sale,*® and has obtained his deed from the officer making the sale,*''' if the possession is wrongfully withheld from him in disobe- dience of the decree of the court, he will be entitled to a writ of assistance, on proof that he has exhibited his deed to the person in possession and demanded the possession of the premises.** Some of the cases hold that a notice of the appli- cation for a writ of assistance should first be given to the defendant and also to the tenant of the premises, if there is one.*® But it would seem, according to the current of author- ities, that a notice of the application is unnecessary.^" Mere delay in applying for a writ is not sufficient to warrant deny- ing the use of the remedy." And it will be granted even after the time for redemption has expired.*^ But a writ of assistance can only issue against parties to the suit, or persons coming into possession under the defend- 464, 13 Pac. 798; Hilbernia Sav- ings & Loan Soc. v. Lewis, 117 Cal. 577, 47 Pac. 602, 49 Pac. 714; Mar- grunder v. Kittle as adm'x, etc. 2 Neb. (Unof.) 418, 89 N. W. 272; Harding v. Marker, 17 Idaho, 341, 134 Am. St. Rep. 259, 105 Pac. 788. See Emerick v. Miller, 159 Ind. 317, 64 N. E. 28. ^^ Batters hall v. Davis, 23 How. (N. Y.) Pr. 383; Armstrong v. Humphries, 5 S. C. 128. ^T Bennett v. Matson, 41 111. 332. See Howard v. Bond, 42 Mich. 131. 48 Kershaw v. Thompson, 4 Johns. Ch. (N. Y.) 609; VanHook v. Throckmorton, 8 Paige Ch. (N. Y ) 33; Frelinghuysen v. C olden, 4 Paige Ch. (N. Y.) 204; Mont- gomery V. Tvutt, 11 Cal. 190; O' Brian V. Fry, 82 111. 87; Kessinger v. IVhittaker, 82 111. 22; Oglesby v. Pearce, 68 111. 220; Aldrich v. Sharp, 4 111. (3 Scam.) 261; Wat- kins V. Jerman, 36 Kan. 464; Wcehler v. Endter, 46 Wis. 301. ^^ Devaucene v. Devaucene, 1 Edw. Ch. (N. Y.) 272; Ray v. Trice as rec'r etc. 49 Fla. 375, 38 So. 367; Higgins v. Peterson, 64 111. App. 256. See post, § 726. In Wisconsin it is left to the dis- cretion of the court. Prahl v. Rogers, 127 Wis. 353, 106 N. W. 287. 50 Valentine v. Teller, Hopk. Ch. (N. Y.) 422; Lynde v. O'Dvnnell, 21 How. (N. Y.) Pr. 39, 12 Abb. (N. Y.) Pr. 291; New York Life Ins. & Trust Co. v. Rand, 8 How. (N. Y.) Pr. 35, 352; Kershaw v. Thompson, 4 Johns. Ch. (N. Y.) 609 ; Dove v. Dove, 1 Bro. Ch. 376, 2 Dick. 617 ; Hugttenin v. Baseley, 15 Ves. 180. 51 Prahl V. Rogers, 127 Wis. 353, 106 N. W. 287. 62 Taylor v. Ellenberger, 134 Cal. 31, 66 Pac. 4. § 726] DELIVERING DEED. 1065 ant after its commencement,^^ The supreme court of Illinois, in the case of Cochran v. Folger,^* say that a decision by a justice, in forcible detainer, in favor of the mortgagor, after a decree of sale, but without demand for possession or pro- duction of the master's deed, is not a bar to a writ of assistance to the purchaser on foreclosure. § 726. Writ of assistance — How obtained. — Where the original decree of foreclosure does not contain an order for the surrender of the premises to the purchaser, a writ of assistance cannot be granted until such an order for the possession of the premises has been obtained upon notice to the party occupying the property after a demand for the possession.^^ A proceeding by a purchaser at a foreclosure sale to obtain a writ of assistance by motion, is not the insti- tution of a new suit, but is only a supplementary step in the action for foreclosure.^^ Recourse to an action at law to ob- tain possession will not, however, be precluded thereby ; " both remedies may be pursued at the same time without mutual interference, until possession is obtained. ^^ A purchaser under a decree of foreclosure will not be entitled to a writ of assistance to turn the occupant of the premises out of possession, even though such person went into possession pendente lite, unless he did so under 'and by permission of some party to the action,^^ for a writ of assis- tance will be proper only where a party who is bound by the ^^Pidcock V. Melick (N. J. Ch.) ^^ Kessinger v. Whittaker, 82 111. 4 Atl. 98. 22. 5*116 111. 194, 5 N. E. 383. ^^ Dickey v. Gibson, 121 Cal. 276, 55 Lynde v. O'Donnell, 12 Abb. 53 Pac. 704. (N. Y.) Pr. 286, 21 How. (N. Y.) ^^ Kessinger v. Whittaker, 82 Pr. 34; A^. Y. Life Ins. & Trust Co. 111. 22; Haynes v. Meek, 14 Iowa, V. Rand, 8 How. (N. Y.) Pr. 35, 320. 352. See Kessinger v. Whittaker, 59 Boynton v. Jackway, 10 Paige 82 111 22; Ballingcr V. Waller, 9 B. Ch. (N. Y.) 307; VanHook v. Mon. (Ky.) 67; Benhard v. Dar- Throckmorton, 8 Paige Ch. (N. row. Walk. Ch. (Mich.) 519. Y.) ZZ. See Ludlow v. Lansing, 1066 MORTGAGE FORECLOSURES. [§ 726 decree of foreclosure, refuses to give up possession on re- quest; and it should not be granted without proper proof of such refusal, after the right of possession has been estab- lished.«° Where a tenant is in possession, the deed executed by the officer making the sale should be exhibited to him by the purchaser, when he makes a demand for possession, and in case of his refusal to give possession, no notice of the appli- cation to the court for a writ of assistance need be given. ^^ If a person in possession is not a party to the suit, but has come into possession of the mortgaged premises since the action was commenced, a writ of assistance will not be granted on refusal to deliver possession to the purchaser on produc- tion of the referee's deed, unless notice of the application for such a writ has been served upon him.^^ But as against a person who was a party to the suit, a writ of assistance may issue ex parte.^^ It seems, however, that one who has come into possession pendente lite will be entitled to a notice of the motion.^* In all cases of resistance by the occupants, the proper method of putting the purchaser into possession is by means of a writ of assistance; it may be issued upon proof of the service of the order to deliver possession and of a refusal to comply with such order.^* Hopk. Ch. (N. Y.) 231; Thompson ^^Benhard v. Darrow, Walk. Ch. V. Campbell, 57 Ala. 189; McChord (Mich.) 519; Commonwealth v. V. McClintock, 5 Litt. (Ky.) 304. Ragsdale, 2 Hen. & Mun. (Va.) 8. ^^ Howard v. Bond, 42 Mich. 131. But see Lynde v. O'Donnell, 12 61 AT. Y. Life Ins. & Trust Co. v. Abb. (N. Y.) Pr. 286, 21 How. (N. Rand, 8 How. (N. Y.) Pr. 35, 352. Y.) Pr. 34. But see Fackler v. Worth, 13 N. J. 65 Valentine v. Teller, Hopk. Ch. Eq. (2 Beas.) 395. 422; Bollinger v. Waller, 9 B. Men. ^^Benhard v. Darrow, Walk. Ch. (Ky.) 67; Hart v. Lindsay, Walk. (Mich.) 519. Ch. (Mich.) 144; Schenck v. Con- 63 N. Y. Life Ins. & Trust Co. v. over, 13 N. J. Eq. (2 Beas.) 220, 78 Cutler, 9 How. (N. Y. )Pr. 407, N. Am. Dec. 95. Y. Life Ins. & Trust Co. v. Rand, 8 How. (N. Y.) Pr. 35, 352. § 727'\ DELIVERING DEED. 1067 § 727. Against whom possession delivered. — Under a decree of foreclosure of mortgaged premises the court will award a writ of assistance and give possession to the pur- chaser, as against all persons who were parties to the suit or who came into possession under any of them while the suit was pending.^^ But the court will not undertake to re- move persons who went into possession after the purchaser had received his deed and conveyed the premises to another.*' A person who enters into possession fifteen months after the sale cannot be regarded as having entered pending the suit.*' Possession may be given to a purchaser as against a person who was not a party to the suit, if he took possession after the commencement of the action in collusion with the mort- gagor, though under a claim of tax title; *^ but the court will not grant a writ of assistance as against a person who entered pending the suit under an adverse claim of title and without the consent or collusion of the mortgagor.'" And a party who enters pending the suit will not be turned out of posses- sion under the decree of foreclosure, if he did not enter under a party to the suit or under some one who derived title to the premises from, or had gone into possession with the per- mission of, a party to the action.'^ The ordinary rule in regard to the execution of a writ of assistance for possession is, that the purchaser must be put in full and complete possession; that the possession to be given by a sheriff is a full and actual possession; and that where the purchaser is put into possession under circum- 66 S^// V. Birdsall, 19 How. (N. 685^// y. Birdsall, 19 How. (N. Y.) Pr. 491, sub nom. Belts v- Y.) Pr. 491, sub nom. Betts v. Birdsall, 11 Abb. (N. Y.) Pr. 222; Birdsall, 11 Abb. (N. Y.) Pr. 222. Kessinger v. Whitaker, 82 111. 22; ^^ Brown v. Marzyck, 19 Fla. Strong v. Smith, 68 N. J. Eq. 686, 840. 63 Atl. 493. See Finger v. Mc- '0 VanHook v Throckmorton, 8 Caughey, as adm'r etc. 119 Cal. 59, Paige Ch. (N. Y.) ZZ. 51 Pac. 13. '1 VanHook v. Throckmorton, 8 ^T Bell V. Birdsall, 19 How. (N Paige Ch. (N. Y.) 33; Freling- Y.) Pr. 491, sub nom. Betts v. huysen v. Colden, 4 Paige Ch. (N. Birdsall, 11 Abb. (N. Y.) Pr. 222. Y.) 204. 1068 MORTGAGE FORECLOSURES. [§ 728 stances plainly indicating that such possession will be but momentary, and he is accordingly ousted the same day, such execution of the writ will be insufficient; the writ of posses- sion will not be regarded as properly executed until the sheriff and his officers have gone and the purchaser is left in quiet and settled possession."''^ § 728. Who entitled to writ of assistance. — The pur- chaser at a sale made under a mortgage foreclosure is, of course, entitled to a writ of assistance; and it has been held that the assignee or grantee of the purchaser is entitled to the same remedy,'^ on the further proof that the deed from the purchaser to him has also been exhibited to the party in possession.'* § 729. Writ of assistance improperly granted, — Where a writ of assistance which was improperly granted, has been executed, or having been properly granted, persons not prop- erly within the meaning of its terms, have been aggrieved by having it executed against them, the court, upon motion, will be bound to correct the wrong; and the persons dispossessed under such writ are entitled to have the possession restored to them.'^^ Where a writ of assistance in favor of a purchaser at a mortgage foreclosure sale is issued upon notice against a tenant in possession of the mortgaged premises, and is exe- cuted by placing the purchaser in possession thereof, it will be conclusive upon the tenant and the purchaser as to the right of possession. If the tenant had any defence against the writ, such defence should have been presented upon the hearing of the motion for the writ ; the question whether the 72 Newell V. Whigham, 102 N. Y. '4 js[_ y. Life Ins. & Trust Co. v. 20, 1 N. Y. St. Rep. 666, reversing Rand, 8 How. (N. Y.) Pr. 35. 99 Hun (N. Y.) 204. ''^ Meiggs v. Willis, 8 N. Y. Civ. '3 Emerick v. Miller, 159 Ind. Proc. Rep. 125 ; Chamberlain v. 317, 64 N. E. 28. Chloes. 35 N. Y. 477. § 731] DELIVERING DEED. 1069 writ was properly awarded cannot be reviewed in another action in another court.'''^ § 730. Writ against tenants in possession. — It has been said that the foreclosure of a mortgage and a sale thereunder of the demised premises pursuant to a decree, extinguishes the title of the mortgagor and also the rights of his lessee."" But where tenants in possession of the mortgaged premises have not been made parties to the suit, the purchaser will not be entitled to possession as against them; '* but if they are made parties, they will be bound to attorn to the purchaser or be removed by a writ of assistance, notwithstanding the fact that they claim under an unexpired lease executed by the mortgagor for a term of years prior to the date of the mort- gage foreclosed.'* § 731. Writ of assistance not granted against holder of paramount title. — Where, on application for a w^rit of as- sistance by a purchaser at a sale under a decree of fore- closure, the party in possession claims to hold the premises under a lease executed before the execution of the mortgage under which the sale is made, the court will not grant a writ of assistance at the instance of such purchaser.*" In all cases where the person in possession shows a ri-ght paramount to the mortgage, the court will not attempt to decide any ques- tions of legal title, and the purchaser will be obliged to seek possession by proceedings at law.*^ ''^ Rawiszer V. Hamilton, 51 Uovf. J. Eq. 175, 64 Atl. 1086. But see (N. Y.) Pr. 297. Reily v. Carter, 75 Miss. 798, 65 ''T Smith V. Cooley, 5 Daly (N. Am. St. Rep. 621, 23 So. 435. Y.) 401, 409; Simcrs v. Saltus, 3 "^^ Lovett v. German Reform Den. (N. Y.) 216; Kershaw v. C/mrc/f, 9 How. (N. Y.) Pr. 220. Thompson, 4 Johns. Ch. (N. Y.) ^^ Thomas v. DeBaiim, 14 N. J. 609. Eq. (1 McCart.) Z7. ''^ Davidson v. Weed, 21 App ^^ Fay v. Stiibenrauch, 83 Pac. 82. Div. 579, 48 N. Y. Supp. 368. See (Cal. App.) ■,Board of Home Mis- also New Jersey Building, Loan & sions of Presbyterian Church v Investment Co. v. Schatzkin, 72 N. Davis. 70 N. J. Eq. 577, 62 Atl. 447; 1070 MORTGAGE FORECLOSURES. [§ 732 Where a purchaser enters into an arrangement with the mortgagor subsequently to the sale, whereby the mortgagor remains in possession, he will be deemed in possession under such contract, and not as a defendant to the foreclosure suit, and the purchaser will not be entitled to a writ of assistance to put himself in possession of the premises; he will then be left to his remedy by an action at law for eject- ment or otherwise.®'' It is held that the granting of a writ of assistance to put a purchaser into possession of the premises rests in every case in the sound discretion of the court; and that in all cases of doubtful right, the possession will be left to legal adjudication.®* § 732. Summary proceedings under the New York Code. — By a provision of the New York Code of Civil Pro- cedure,®* the remedy by summary proceedings to obtain pos- session of premises in mortgage foreclosures, is restricted to those cases where the foreclosure is conducted by advertise- ment and not by an equitable action.®* Ex parte Jenkins, 48 S. C. 325, 26 82 Toll v. Hiller, 11 Paige Ch. (N. S. E. 686; Schenck v. Conover, 13 Y.) 228. N. J. Eq. (2 Beas.) 220, 78 Am. ^^ McComh v. Kankey, 1 Bland. Dec. 95. See McKomb v. Kankey, Ch. (Md.) 363, note C. See 1 Bland. Ch. (Md.) 363, note C; Thomas v. DeBaum, 14 N. J. Eq. State ex ret. Biddle v. Superior (1 McCart.) 37. Court of King County, 63 Wash. 84 § 2232. 312, 115 Pac. 307; Ricketts v. Chi- ^^ Green v. Geiger, 46 App. Div. cago Permanent Building & Loan 210, 61 N. Y. Supp. 524. See post, Asso. 67 111. App. 71. § 962. CHAPTER XXIX. JUDGMENT FOR DEFICIENCY. REPORTING DEFICIENCY — WHO LIABLE FOR — LIABILITY ON BOND — GUARANTY AND ASSUMPTION — INTENTION OF PARTIES GOVERNS — HOW AMOUNT OF DETERMINED — EXECUTION FOR — MISCELLANEOUS MATTERS. § 733. Generally. § 734. Referee conducting sale reporting deficiency. § 735. Contingent decree for deficiency. § 736. Suit at law for deficiency. § 737. Power of court of chancery to decree judgment for deficiency. § 738. Judgment for deficiency against mortgagor. § 739. Same — Service of process by publication. § 740. Same — Death of mortgagor. § 741. Judgment for deficiency against third persons. § 742. Deficiency against assignor guaranteeing payment. § 743. Deficiency against party assuming mortgage. § 744. Mortgaged premises primary fund — Subsequent liability. § 745. Assumption of mortgage — Defense by grantee. § 746. Assumption of mortgage — When grantee not liable for deficiency. § 747. Release from liability on assumption. § 748. No liability where deed subject to mortgage. § 749. Oral contract of assumption may be enforced. § 750. Intention of parties determines question of assumption. § 751. No judgment for deficiency against non-resident. § 752. No judgment for deficiency for installments not yet due. § 753. Deficiency — How determined. § 754. When judgment for deficiency may be docketed. § 755. When judgment for deficiency becomes a lien. § 756. Execution for deficiency. § 757. Miscellaneous matters connected with judgments for deficiency. § 733. Generally. — All proceedings to collect any defi- ciency arising on the sale of mortgaged premises under a foreclosure are purely statutory.^^ The statute, authorizing 86 McCrickett v. Wilson, 50 Mich. petition to set such proceedings 513. In this case it was held that a aside for want of notice was per- 1071 1072 MORTGAGE FORECLOSURES. [§ 7ZZ a judgment of deficiency in an action for foreclosure in New York, was enacted to avoid the necessity of a separate action at law, and to enable one court to dispose of the whole case.®' In most of the states, statutes have been enacted for the regulation of mortgage foreclosures, giving power to the court, not only to direct the sale of the mortgaged premises and to compel the delivery of the possession thereof to the pur- chaser, but also to adjudge payment by the mortgagor or b)^ any other person liable for the debt of any deficiency that might remain unsatisfied after the sale of the mortgaged prem- ises, and, as in other actions, to issue the necessary execution upon such judgment of deficiency. ®® Without statutory authority such an execution could not be issued in a foreclosure against the property of the mort- gagor or other person liable for the deficiency remaining unsatisfied after the application of the proceeds of the sale to the payment of the mortgage debt.*^ An action at law was formerly the only remedy for the recovery of such deficiency. In all those cases where there is an express agreement for the payment of money, and the mortgaged premises fail to sell for enough to pay the debt and costs and expenses of suit, the court will direct that the unsatisfied balance be levied on other property of the mortgage debtor.^" But a judgment for missible without filing a bill of re- view. Wisconsin National Loan & Building Ass'c. v. Pride, 136 Wis. 102, 116 N. W. 637. ^"^ S CO field V. Doscher, 72 N. Y 491 ; Equitable Life Ins. Co. v. Stevens, 63 N. Y. 341 ; Thome v Newby, 59 How. (N. Y.) Pr. 120. 88 N. Y. Code Civ. Proc. § 1627 Florida Code (Bush's Dig.) 849; North Carolina Code, § 190; Wis- consin Rev. Stat. § 3156. See Equitable Life Ins. Co. v. Stevens, 63 N. Y. 341 ; Thome v. Newby, 59 How. (N. Y.) Pr. 120; Jannan v. M'^iswall, 24 N. J. Eq. (9 C. E. Gr.) 267. See Hurd's Stat. 1909, chap. 95, § 16 (111.) Strause v. Dutch. 250 111. 326, 35 L.R.A.(N.S.) 413, 95 N. E. 286. See ante, § 216, et seq. ^^Stark V. Mercer, 4 Miss. (3 How.) 377; Fleming v. Sitton, 1 Dev. & B. (N. C.) Eq. 621; Wad- dell V. Hewitt, 2 Ired. (N. C.) Eq. 252; OrcharU v. Hughes, 68 U. S. (1 Wall.) 73, 17 L. ed. 560. But see Wightman v. Gray, 10 Rich. (S. C.) Eq. 518. See ante, §§ 216-220. 90 Thomas v. Simmons, 103 Ind. 419, 2 N. E. 203, 3 Id. 381, Ind. Code 1852, § 634, 2 Ind. Rev. Stat. § 733] JUDGMENT FOR DEFICIENCY. 1073 a deficiency entered where no indebtedness actually exists, cannot be used for purposes of redemption.®^ It is said that under the Mississippi code,®^ providing that, upon the confirmation of the report of sale of property under a decree to satisfy a mortgage or other lien, the court shall render a decree for any balance, such decree may be had against the personal representative of the deceased mort- gagor.'^ The proceedings to collect a deficiency left after applying the proceeds of the sale of mortgaged lands on foreclosure sale to the discharge of the mortgage debt, are purely statu- tory, and the statute in each particular instance governs. It has been said that a further or other judgment for defi- ciency is not necessary in a mortgage foreclosure, vv^here the decree of foreclosure directs a sale and judgment for defi- ciency; nor is an order confirming the sale necessary as to those persons against whom the judgment for deficiency is directed.®* But a foreclosure decree in the alternative that the defendants pay the debt within thirty days, or upon their failure the land shall be sold, does not create a personal lia- bility.®^ It is held error to include in a personal decree against a mortgagor on the notes secured by the mortgage in a fore- closure suit brought by the mortgagee's executor, an item of interest against which limitation had run before the mort- gagee's death.®^ But the fact that the mortgagee in an action to foreclose his mortgage procured an amount to be found due in excess of the sum actually due, does not preclude the re- covery of a deficiency judgment by him for the amount actu- ally due, where in the proceedings for such deficiency judg- 1876, p. 262, Rev. Stat. 1881, § 9* Taylor v. Derrick, 46 N. Y. S. 1097. R. 583, 19 N. Y. Supp. 785. ^^Wetherbee v. Fitch, 117 111. 67, ^^ Dates v. Winstanley, 53 111. 7 N. E. 513. App. 623. 92 Miss. Code, § 1935. ^^ Mclntire v. Conrad, 93 Mich. 98 Weir V. Field, 67 Miss. 292, 7 526, 53 N. W. 829. So. 355. Mortg. Vol. II.— 68. 1074 MORTGAGE FORECLOSURES. [§ 755 ment the amount found due in the decree is mutually disre- garded and a new accounting had.®' A personal judgment for deficiency may be rendered not only for the amount of interest and principal remaining un- paid, but also for insurance moneys, under a provision of the mortgage that the premises shall be kept insured, and, in case of default made by the mortgagor, the same shall be performed by the mortgagee, and all expenses incurred in so doing shall be paid by the mortgagor.®* The judgment for deficiency and the proceedings to collect it being purely statutory, the judgment can be granted only in those cases where authorized. There can be no judgment for deficiency granted against the maker of a promissory note secured by a valid deed of trust before the security has been legally exhausted by foreclosure.'® Neither can a judgment for deficiency be had upon a mortgage foreclosed for default in payment of interest, in those cases where the principal is not due, and there is no provision in the mortgage that it shall become due upon default in payment of installment of interest.^ In Connecticut the statute * bars further action on a mort- gage debt where there has been a foreclosure without making the mortgagee a party thereto.^ In New York it is held that no judgment for deficiency can be rendered under the code,* providing for judgment for deficiency in a mortgage debt after sale of property and application of the proceeds, in an action to foreclose a mortgage, where a sale in rendered im- possible by foreclosure and sale under a prior mortgage, al- though thereafter judgment for sale has been entered, and al- though a surplus is left upon such sale, after the application of ^"^ Grand Island Sav. & L. Asso. ^ Farmers' Loan & T. Co. v. V. Moore, 40 Neb. 686; 59 N. W. Grape Creek Coal Co. 13 C. C. A. 115. 87, 65 Fed. 717. See post, § 752. 98 Building & L. Asso. v. Logan, 2 Conn. Act. 1878. 66 Fed. 827. 3 Curtis v. Hazen, 56 Conn. 146, 99 Powell V. Pattison, 100 Cal. 14 Atl. 771. 236, 34 Pac. 677. * N. Y. Code Civ. Proc. § 1627. § 734] JUDGMENT FOR DEFICIENCY. 1075 which a balance remains due upon the debt.^ And in South Carolina it is said, in the case of Hartzog v. Goodwin,® that a mortgagee who fails in a foreclosure because payments made are held to extinguish the mortgage debt, instead of another due him from the mortgagor to which he had sought to apply them, cannot in the foreclosure suit have personal judgment against the mortgagor for the balance due upon the latter debt. § 734. Referee conducting sale reporting deficiency. — The referee conducting the sale in a mortgage foreclosure, is usually required to report any deficiency remaining unpaid after the sale of the property and the application of the pro- ceeds thereof to the payment of the debt. The referee should ascertain the amount of the deficiency, and also the names of the parties who are liable for its payment, and state these facts in his report to the court; a direction to the referee to report such facts should be included in the decree of sale.' A referee's report of sale, which shows that the apparent deficiency is produced entirely by the unauthorized allowance of a claim to the purchaser, is to be treated as not reporting any deficiency.' On the confirmation of the report of the ofificer making* the sale, a judgment for deficiency may be docketed, when the judgment and decree of sale so provides.^ But it is said that such judgment cannot be entered, even contingently, until after the officer appointed to make the sale has made and filed his report,^" and, even then, the clerk should not enter up ^ Frank v. Davis, 61 Hun (N. Y.) ester v. Emerson, 10 Paige Ch. (N. 496, 41 N. Y. S. R. 292, 16 N. Y. Y.) 359; Cartly v. Graham, 8 Paige Supp. 369. Ch. (N. Y.) 480. 6 37 S. C. 603, 15 S. E. 880. lo Hunt v. Dohrs, 39 Cal. 304 ; "^McCarthy v. Graham, 8 Paige Culver v. Rogers, 28 Cal. 520; Eng- Ch. (N. Y.) 480. lund v. Lewis, 25 Cal. 337; Cor- ^ Bache v. Doscher, 67 N. Y. 429, merles v. Genella, 22 Cal. 116; Row- aff'g 41 N. Y. Supr. Ct. (9 J. & S.) land v. Leiby, 14 Cal. 156; Lippcrd 150, See ante, § 225. v. Edwards, 39 Ind. 165 ; Cobb v. 'See Bache v. Doscher, 9 Jones Thornton, 8 How. (N. Y.) Pr. 66. & S. (N. Y.) 150; Bank of Roch- 1076 MORTGAGE FORECLOSURES. [§ 734 such judgment without the further order of the court.^^ Thus, it is said by the supreme court of South CaroHna, in the case of Lawton v. Perry, ^^ that no judgment exists for any deficiency of the mortgage debt after the proceeds of a sale under foreclosure of the mortgaged property have been applied thereto, until an order of the court is had on the report of the officer making the sale showing what deficiency exists, for a judgment for such deficiency, with leave to enforce its collection by execution. Consequently, a judgment of fore- closure is erroneous and void in providing for the recovery of any specific sum of money as a deficiency to be enforced by execution, before the mortgaged premises are sold and the pro- ceeds of the sale found to be insufficient.^^ The rule requiring application to the court for an order confirming the report of the officer appointed to make the sale, and to enter further judgment upon the filing of said re- port, before issuing execution in supplementary proceedings, :is not uniformly applied in the courts. In New York it is held not to be essential ; " a failure to procure a confirmation before issuing such execution being a mere irregularity at most, and inasmuch as it is purely a question of procedure, the de- ■cision of the lower court is final. ^* In Michigan, a special application is required to be made to the court before an exe- cution can issue on a judgment for deficiency ;^^ and in JMebraska, a prior order of confirmation is essential," as is also the case in New Jersey ^* and Wisconsin." ^^Leviston v. Swan, 33 Cal. 480. ^^ Moore v. Shaw, 77 N. Y. 512, See Hooper V. McDade, 1 Cal. App. affg. 15 Hun (N. Y.) 428; N. Y. 733, 82 Pac. 1116. Code Civ. Proc. § 721, subd. 12. 12 40 S. C. 255, 18 S. E. 861. ^^McCrickett v. Wilson, 50 Mich. ^^Parr v. Lindler, 40 S. C. 193, 513, 15 N. W. 885; Gies v. Green, 18 S. E. 636. 42 Mich. 107, 2 N. W. 283. 14 Bicknell v. Byrnes, 23 How. " Clapp v. Maxwell, 13 Neb. 542, (N. Y.) Pr. 486; Springsteene v. 14 N. W. 653. Gillett, 30 Hun (N. Y.) 260; Moore " wkHe y. Zust, 28 N. J. Eq. (1 V. Shaw, 15 Hun (N. Y.) 428, affd. Stew.) 107. 77 N. Y. 512; Baclie v. Doscher, 9 ^^Tormey v. Gerhart, 41 Wis. Jones & S. (N. Y.) 150, affd. 67 N. 54, Wis. Laws, p. 243. Y. 429. § 735} JUDGMENT FOR DEFICIENCY. 1077 § 735. Contingent decree for deficiency. — The plaintiff in an action to foreclose a mortgage cannot have a personal judgment against any of the defendants prior to the final decree of foreclosure and sale.^° The correct practice is, to make a contingent judgment in the decree of foreclosure and sale for the payment of any deficiency which may appear upon the coming in and the confirmation of the report of sale, and that the plaintiff have execution therefor. ^^ An execution cannot be issued until the deficiency has been ascer- tained from the report of sale.^^ Where the person adjudged in the decree to be liable for the deficiency, has not appeared in the case, it is the practice in New Jersey, after ascertaining the amount of such deficiency, to award execution therefor ex parte.^^ The deficiency for which a mortgagor is liable, is ascer- tained by deducting the proceeds of the sale from the amount due on the mortgage for principal and interest, together with the costs and all taxes and assessments.^* In a case where the decree of sale directed that the mortgagor, or other party per- sonally liable for the debt, should pay any deficiency arising on the sale, the property was struck off for enough to satisfy the mortgage, but the purchaser refused to complete the sale ; an order requiring him to do so was obtained, but was not en- forced; the plaintiff, without proceeding against him for contempt, procured an order for a resale, and upon the second sale there was a deficiency ; it was held that the mortgagor, or 2° Cobb V. Thornton, 8 How. (N. But in Michigan a deficiency Y.) Pr. 66. judgment cannot be entered with- al Co fct V. Thornton, 8 How. (N. out notice to the mortgagor. Pren- Y.) Pr. 66; McCarthy v. Graham, 8 tis v. Richardson's Estate, 118 Mich. Paige Ch. (N. Y.) 480. See Eg- 259, 76 N. W. 381. gleston v. Morrison, 185 111. 577. 57 ^^ Marshall v. Davies, 78 N. Y. N. E. 775. See ante, §§ 223-225. 414, reversing 16 Hun (N. Y.) 606. 22 Bank of Rochester v. Emerson, See also Mitchell v. Bowne, 63 10 Paige Ch. (N. Y.) 115; Howe How. (N. Y.) Pr. 1, 14 N. Y. Wk. V. Lemon, 37 Mich. 164. Dig. 234. See ante, § 225. 23 White V. Zust, 28 N. J. Eq. (1 Stew.) 107. 1078 MORTGAGE FORECLOSURES. [§ 735 Other party liable for the debt, was personally liable for the deficiency arising on the resale.*^ The deficiency contemplated by the New York Code ^* has been held to be only the deficiency arising from an actual sale under a foreclosure of the mortgage, and not the deficiency caused to a second mortgagee by a sale under a prior mortgage ; in the latter case the remedy would be by an action on the bond.^' A personal judgment against the maker of a promissory note secured by a valid deed of trust, is improper before the security has been legally exhausted by foreclosure.^® The court of appeals of Missouri, in the case of Steckman v. Harber,^^ say that a person who has purchased notes covered by a deed of trust from one who agreed that he would not collect the money when it became due without first giving those liable thereon notice, and who directs the foreclosure of such deed at a place 100 miles distant without notifying those liable, although he sees them almost daily and knows that they are able to pay the amount of the notes, will not be allowed a judgment for the amount of the notes, interest and costs, without making a deed to those liable thereon of the lands purchased by him at the sale under the deed of trust. It is said by the supreme court of New York, in the case of Brewer v. Longnecker,^" that a provision in a decree foreclosing a mortgage for an installment of the whole sum secured, and directing a sale of the whole premises, and that in case of a deficiency in the proceeds to pay the installment the defendants personally liable for the debt pay such deficiency, is improperly amended by providing for the payment of a deficiency in the whole mortgage debt not due, where there is another provision that in case the proceeds of the sale shall be 25 Goodwin v. Simonson, 74 N. Y. Hun. (N. Y.) 44, and note to § 738 133. But see Walsh v. Robinson, post. 135 Mich. 16, 97 N. W. 55, 99 N. 28 Powell v. Pattison, 100 Cal. W. 282. 236, 34 Pac. 677. 26 Code Civ. Proc. § 1627. 29 55 Mo. App. 71. ^T Loeb V. Willis, 22 Hun (N. Y.) 30 15 n. Y. Supp. 937, 40 N. Y 508. See Siewert v. Hamel, 33 S. R. 614. § 736] JUDGMENT FOR DEFICIENCY. 1079 insufficient to pay the whole debt the plaintiff, as installments become due, may apply for judgment against such defend- ants. § 736. Suit at law for deficiency. — In those cases where there is an express agreement for the payment of money, and on the sale of the mortgaged premises the sum realized from the property is not sufficient to discharge the mortgage debt, the mortgagee or holder of the mortgage may maintain an action at law for the amount remaining after deducting from the face of the debt, with interest and costs, the amount for which the mortgaged property was sold ; ^^ because in such a case the foreclosure merely extinguishes the debt to the ex- tent of the money produced by the sale of the mortgaged prem- ises and applicable to the obligation.^^ The supreme court of California say, in the case of Blumberg v. Birch,^^ that a new action upon a note originally secured by a mortgage, for a deficiency upon foreclosure upon which no valid judgment can be obtained because service was made by publication, is not barred by the code of that State,^^ providing that there can be but one action for the recovery of any debt or the en- ^^ Porter v. Pillsbury, 36 Me. 278; Hartley, 2 Bro. Ch. 125; sub nom. Briggs v. Richmond, 27 Mass. (10 Tooke v. , 2 Dick, 785; Aylet Pick.) 391, 396, 20 Am. Dec. 526; v. Hill, 2 Dick 551; Dashwood v. West V. Chamberlain, 25 Mass. (8 Blythway, 1 Eq. Cas. Abr. 317; Pick.) 336; Amory v. Fairbanks, 3 Perry v. Barker, 13 Vesy. 198, 204. Mass. 562; Andrews v. Scotton, 2 9 Rev. 171; Strause v. Dutch, 250 Bland. Ch. (Md.) 269; Lansing v. 111. 326, 35 L.R.A.(N.S.) 413, 95 Goelet, 9 Cow. (N. Y.) 346; Globe N. E. 286. See also Johns v. Wil- Ins. Co. V. Lansing, 5 Cow. (N. son, 6 Ariz. 125, 53 Pac. 583. But Y.) 380, 15 Am. Dec. 474; Case v. see Matter of Marshall, 53 App. Boughton, 11 Wend. (N. Y.) 106, Div. 136, 65 N. Y. Supp. 760. 109; Morgan v. Plumb. 9 Wend. ^^ Globe Ins. Co. v. Lansing, 5 (N. Y.) 287, 292; Spencer v. Har- Cow. (N. Y.) 380, 15 Am. Dec. ford, 4 Wend. (N. Y.) 384, 386; 474; Dunkley w. Van Buren, 2 John. Hughes v. Edwards, 22 U. S. (9 Ch. (N. Y.) 231. Wheat.) 489, 6 L. ed- 14; Hatch v. 8899 Cal. 416, 37 Am. St. Rep. 67. ^Vhite, 2 Gall. C. C. 154; Omaly v. 34 Pac. 102. Swan, 3 Mass. C. C. 474; Tooke v. »* Cal. Code Civ. Proc. § 726. 1080 MORTGAGE FORECLOSURES. [§ 7Z7 forcement of any right secured by mortgage upon either real or personal property. It is said by the supreme court of New York, in the case of Schultz v. Mead,^^ that leave to sue at law on a judgment for deficiency is not necessary, because the code ^^ has reference to the original debt which the mort- gage secures, and does not apply to a suit for the deficiency. It is said, in the case of Winters v. Hub Mining Com- pany ,'"' that a mortgagee who obtains a mortgage of fore- closure cannot thereafter maintain a separate action for the deficiency remaining, against the person liable for the debt, under a statute providing that there can be but one action for the recovery of any debt, or the enforcement of any right secured by mortgage upon real or personal property, which action must be in accordance with the provisions there- in made for the sale of the property and judgment for the deficiency.'* § 737. Power of court of chancery to decree judgment for deficiency. — In the absence of statutory provisions giving it authority, a court of equity possesses no power to give a lien upon or to sequestrate any other property of the mortgagor as an additional security, until the property de- scribed in the mortgage has been exhausted ; ^^ for that reason, it cannot decree the payment of any deficiency remaining after the application of the proceeds of the sale of the mort- gaged premises to the payment of the debt, unless the court of chancery would have had jurisdiction to enforce the debt without the mortgage.*" 36 8 N. Y. Supp. 663, 29 N. Y. S. 87 57 Ped. 287. R. 203. 38 Idaho Rev. Stat. 4520. 36 N. Y. Code Civ. Proc. § 1628. 39 Qlapp v. Maxwell, 13 Neb. 542. But see Robert v. Kidansky, 111 4° IVebber v. Blanc, 39 Fla. 224, App. Div. 475, 97 N. Y. Supp. 913 ; 22 So. 655 ; Rosenbaum v. Kershaw, Morrison v. Slater, 128 App. Div. 40 111. App. 659. See Dunkley v. 467, 112 N. Y. Supp. 855; Dana- VanBuren, 3 Johns. Ch. (N. Y.) stadt V. Manson, 144 App. Div. 249 330; Hunt v. Lewin, 4 Stew. & Port. 128 N. Y. Supp. 992. (Ala.) 138; Morgan v. Wilkins, 6 § 738] JUDGMENT FOR DEFICIENCY. 1081 Thus, where no note, bond, mortgage or other legal obliga- tion, was given to secure the payment of the debt, or, if given, had been lost, a court of equity could, in some states, enforce its payment as an equitable claim against the mortgagor, by a personal judgment for the balance remaining unsatisfied after the sale of the premises." It is said, in the case of Tafifey v. Atcheson,*^ that a mort- gage executed in New Jersey before the statute of 1880,*^ declaring that no decree for deficiency shall be made in a fore- closure suit, is subject thereto, because the act does not affect the mortgage, but merely the remedy thereon. The supreme court of Utah, in the case of Brerton v. Mills,** say that the power inherent in the general equity jurisdiction given to the Utah supreme and district courts by the Organic Act *^ to direct a personal judgment for the debt and proceedings to collect it, before ordering a sale of mortgaged premises con- veyed by the mortgagor with full covenants of warrantv, cannot be abridged by a territorial statute providing that the lands must first be sold. The circuit courts of the United States under equity rule 92 have equitable jurisdiction in a foreclosure suit to award a personal judgment for a deficiency.*^ § 738. Judgment for deficiency against mortgagor. — On the foreclosure of a mortgage by the mortgagee, the Hewitt, 2 Ired. (N. C.) Eq. 252. See Block v. Allen, 99 Ga. 417, 27 S. E. 7ZZ. «42 N. J. Eq. (15 Stew.) 182, 6 Atl. 885. 43 N, J. Pamphlet Laws, 18S0, p. J. J. Marsh. (Ky.) 28; McGee v Davie, 4 J. J. Marsh. (Ky.) 70 Downing v. Palmate er, 1 T. B. Mon (Ky.) 64; Stark v. Mercer, 4 Miss (3 How.) 377; Fleming v. Sitton, I Dev. & B. (N. C.) Eq. 621; Orchard v. Hughes, 68 U. S. (1 255. Wall.) 73, 17 L. ed. 560; Noonan ^7 Utah, 426. 27 Pac. 81. V. Lee, 67 U. S. (2 Black) 499. « u. S- Rev. Stat. § 1868. II L. ed. 278. See ante, §§ 216-220. ^^ Grant v. Winona & Southwest- « Crutchfield v. Coke, 6 J. J. em Ry. Co. 85 Minn. 422. 89 X. W. Marsh. (Ky.) 89; Waddell v. 60; Northwestern Mutual Life Ins. 1082 MORTGAGE FORECLOSURES. [§ 738 debtor is entitled to credit only for the net proceeds realized from the sale, after deducting the costs and expenses of the sale and all liens for taxes." No proceedings can be had upon a judgment or decree to compel the payment of the de- ficiency until the report of the referee or other officer con- ducting the sale has been filed and duly confirmed, and the exact amount of such deficiency has been ascertained." It seems that where the judgment in an action for fore- closure provides, "that if the proceeds of the sale be insuffi- cient to pay the amount so reported to be due to the plaintiff, the said referee specify the amount of such deficiency in his report of sale, and that the defendant pay the same to the plaintiff," it is not necessary to apply to the court for an order confirming the report of the referee before issuing execution against the defendant for the amount of the deficiency, nor to enter any further judgment upon the filing of the said report.*' In most, if not all, the states there are statutes authorizing the court to award a conditional judgment for any deficiency Co. V. Keith, 77 Fed. 374; Seattle L. S. & E. Ry. Co. V. Union Trust Co. 79 Fed. 179. ^T Marshall v. Davies, 78 N. Y. 414. ^^Bache v. Doscher, 41 N. Y. Supr. Ct. (9 J. & S.) 150; Bank of Rochester v. Emerson, 10 Paige Ch. (N. Y.) 359; Tormey v. Gerhart, 41 Wis. 54 ; Baird v. McConkey, 20 Wis. 297. In Siewert v. Hamel, 33 Hun (N. Y.) 44, during the pen- dency of an action brought to fore- close a mortgage, a prior mortgage upon the same premises was fore- closed, and the premises were sold and purchased by the plaintiff. The surplus arising from such sale was applied by the plaintiff in reduction of the amount due upon his sec- ond mortgage. The usual judg- ment of foreclosure was then en- tered, after the said sale under the prior mortgage, directing the ref- eree to specify the amount of the deficiency in his report of the sale, and adjudging the defendant to pay the same to the plaintiff. There- after the plaintiff, without having the premises sold under his judg- ment, applied for leave to enter a judgment of deficiency for the amount remaining due upon his judgment after applying thereon the amount of surplus money re- ceived under the foreclosure of the prior mortgage. The application was held to have been properly made and granted. See ante, §§ 224, 225, 227, 735. '^^ Moore v. Shaw, IS Hun (N. Y.) 428. § 738] JUDGMENT FOR DEFICIENCY. 1083 there may be found and reported to the court by the officer authorized to make the sale.®* Under these statutes it has 50 See Goodlett v. St. Elmo Invest Co. 94 Cal- 297, 29 Pac. 105 ; Windham County Sav. Bank v. Himes. 55 Conn. 433, 12 Atl. 517; Shelden v. Erskine, 78 Mich. 627, 44 N. W. 146; IVeir v. Field, 67 Miss. 292, 7 So. 355 ; Flentliam v. Steward, 45 Neb. 640, 63 N. W. 924 ; Grand Island Sav. & L. Assoc. V. Moore, 40 Neb. 686, 59 N. W. 115; Frank v. Davis, 135 N. Y. 275, 31 N. E. 1100, 48 N. Y. S. R. 86, 29 Abb. (N. Y.) N. C. 294, 22 Civ. Prac. 426, 20 Wash. L. R. 699, 17 L.R.A. 306; Clark v. Simmons, 55 Hun (N. Y.) 175, 8 N. Y. Supp. 74, 28 N. Y. S. R. 738; Schultz v. Mead, 8 N. Y. Supp. 663, 29 N. Y. S. R. 203; Shumway v. Orchard, 12 Wash. 104, 40 Pac. 634; Shep- herd V. Pepper, 133 U. S. 626, 33 L. ed. 706, 10 Sup. Ct. 438. The Connecticut Act of 1833, Rev. 1875, P- 358, § 2, providing that a mortgagee may recover the de- ficiency on foreclosure, is not re- pealed by Conn. Laws 1878, chap. 129, providing for an appraisal of the mortgaged property by apprais- ers, and that the mortgagee shall recover only the difference between the value of the property as fixed by the appraisal and the amount of his claim, except where the ap- praisal is made under a later stat- ute. Windham County Sav. Bank V. Himes, 55 Conn. 433, 12 Atl. 517. The court holds these provisions are not inconsistent, but alternative Also that part of the latter Act providing that no suit for deficiency shall be brought against one not a party to the foreclosure suit repeals so much of the former Act as al- lowed suit against those not parties. Windham County Sav- Bank v. Himes, 55 Conn. 433, 12 Atl. 517 In Michigan, How. Mich. Stat. § 670^, giving the court power to decree payment of any balance of a mortgage debt remaining unsatis- fied after the sale, does not con- template the case where there are several complainants who hold the mortgage jointly, but have no joint rights to any of the debts secured, and no provision is made for sepa- rate personal decree of deficiency in favor of the separate complain- ants. Shelden v. Erskine, 78 Mich. 627, 44 N. W. 146. In Mississippi the exercise of the power conferred by Miss. Code, § 1935, upon the confirmation of the report of sale of property under a decree to satisfy a mortgage or other lien, to render a decree for any balance, is not to be limited to the term at which the sale is con- firmed, but a decree for the bal- ance may be moved for at any time before the statute of limitation bars its execuation. Weir v. Field, 67 Miss. 292, 7 So. 355. In Nebraska the Code of Civil Procedure, § 847 (now repealed) expressly authorized the district court, on the coming in of the re- port of sale of mortgaged prem- ises, to render a personal judgment and award execution for any de- ficiency remaining unpaid on the decree. Flentham v. Steward, 45 Neb. 640, 63 N. W. 924. See Blumle v. Kramer, 14 Okl. 366, 79 Pac. 215. 1084 MORTGAGE FORECLOSURES. [§ 738 been held that a purchaser at a foreclosure sale under a first mortgage, being also owner of a second mortgage, may pur- chase at a subsequent sale thereunder subject to his rights ac- quired on the first sale, and enter judgment for the defi- ciency.** And it is said the fact that the mortgagee made a profit upon his purchase of the mortgaged premises is not a defense to an action on a judgment of deficiency.*^ It is thought that in a suit against an association of individuals sustaining to each other the relation of partners, to foreclose a mortgage made by it, the members at the time of the exe- cution of the mortgage, who were made parties to the suit, are each liable to a personal judgment for the deficiency.*' The New York court of appeals, in Frank v. Davis,** say that a judgment for a deficiency under a junior mortgage is not prevented by the impossibihty of a sale of the land, which results from the fact that, pending appeal from the judgment of foreclosure, a sale of the land was made under a prior mortgage and surplus was left insufficient to pay In Washington, under Code Pro- cedure, § 628, providing that when there is an express agreement for the payment of money secured, con- tained in the mortgage or separate instrument, the decree of foreclos- ure shall direct that the balance due remaining unsatisfied after the sale shall be satisfied by any property of the mortgage debtor, a personal judgment may be rendered against the makers of a note secured by a mortgage upon real estate at the time of rendition of a decree of foreclosure, so as to make it a gen- eral lien upon all the property owned by the mortgagor at the time of the entry thereof or thereafter acquired, and a previous return of sale is not essential. Shumway v. Orclmrd, 12 Wash. 104, 40 JPac. 634. Under U. S. Rev. Stat. § 808, lating to the District of Columbia, a decree in personam is authorized against a debtor for the balance re- maining due after the proceeds of the sale of lands covered by a mort- gage or a deed of trust in the nature thereof have been applied to the satisfaction of the debt. Shep- herd V. Pepper, 133 U. S. 626, 32 L. ed. 706, 10 Sup. Ct. 438. 51 Clark v. Simmons, 55 Hun (N. Y.) 175, 28 N. Y. S. R. 738, 8 N. Y. Supp. 74. 62 Schult;: v. Mead, 8 N. Y. Supp. 663, 29 N. Y. S. R. 203. 53 Goodlett V. St. Elmo Invest. Co. 94 Cal. 297, 29 Pac. 505. 5M35 N. Y. 275. 31 N. E. 1100, 48 N. Y. S. R. 86, 29 Abb. (N. Y.) N. C. 294, 22 Civ. Proc. Rep. 426, 20 Wash. L. Rep. 699, 17 L.R..^ 306. § 738] JUDGMENT FOR DEFICIENCY. 1085 the junior mortgage, although the statute provides for a per- sonal judgment for the residue of the debt, which is unsatis- fied "after a sale of the mortgaged property." And it is held by the supreme court of Nebraska," that a loan associa- tion holding stock of a mortgagor as additional security for the mortgage debt, is not obliged to resort to the security furnished by such stock before recovering a judgment for defi- ciency against the mortgagor. The supreme court of New York, in the case of Hulbert v. Clark,®^ say that an action for the foreclosure of a mortgage of real estate given to secure a simple-contract debt evidenced by promissory notes, being an action on the mortgage, and not on the notes, is solely an action in rem and no personal judgment for a deficiency can be had therein. And it is said that a mortgage corporation cannot recover against the mortgagor in an action on the note, where it purchased the property for value from the mort- gagor's grantee, causing the conveyance to be made to its president to prevent the merging of the mortgage in the legal title, and, on default of payment of the mortgage debt, fore- closed and bid in the property." The supreme court of Penn- sylvania, in the case of Cock v. Bailey,*' say that the holders of bonds of a limited partnership, secured by a mortgage upon its realty, who purchased the mortgaged premises through a trustee designated by them, subject to the mortgage lien, can- not afterwards collect the amount of the bonds from the company or its members individually, since the bonds be- come a part of the purchase money withheld at the time of the sale. And it is thought a failure to carry out an agreement of a mortgagee to bid the full amount of his judgment on foreclosure sale, in consideration of being permitted to take a default, constitutes an actionable fraud or wrong which en- 65 Grand Island Sav. & L. Asso. ^'^ National Invest. Co. v. Nordin, V. Moore, 40 Neb. 686, 59 N. W. 115. 50 Minn. 22,6, 52 N. W. 899. 56 57 Hun (N. Y.) 558, 19 Civ. 68146 Pa. St. 328, 23 Atl. 370, 29 Proc. Rep. 177, 11 N. Y. Supp. 417, W. N. C. 233, 22 Pitts. L. J. N. S. 33 N. Y. S. R. 354. 217, 1 Pa. Adv. R. 19. 1086 MORTGAGE FORECLOSURES. [§ 739 titles the mortgagors to relief against a personal judgment for a deficiency. ^^ § 739. Same — Service of process by publication. — In those cases where process in a mortgage foreclosure is served by publication only, no valid personal judgment can be entered for deficiency. °° Yet it is said that a deficiency properly as- certained in a foreclosure suit commenced by publication of the summons, constitutes a subsisting indebtedness from the mortgagor so served, although no judgment can be entered therefor." § 740. Same — Death of mortgagor. — We have already seen ^^ that the lien of a mortgage is not affected by the death of the mortgagor,*^ but the mortgagee or party holding the mortgage may proceed to foreclose the same. On such fore- closure the estate of the mortgagor is liable for any defi- ciency.^* This is equally true where the mortgage is foreclosed by the executor, under leave of court, for the payment of debts; ^* but no judgment for deficiency in a suit to foreclose the same can be rendered against the heirs or personal repre- sentatives,^® for the heirs, administrators and widow of the 59 Heim v Butin, 109 Cal. 500, 50 Am. St. Rep. 54, 40 Pac 39, 42 Pac. 138. 60 Blumherg v. Birch, 99 Cal. 416, 2,7 Am. St. Rep. 67, 34 Pac. 102. 61 Blumberg v. Berch, 99 Cal. 416, 37 Am. St. Rep. 67, 34 Pac. 102. 62 See ante, § 280. 63 A power of sale in a mortgage is revoked by the death of the mort- gagor in Georgia, and perhaps else- where. Wilkins V. McGeJiec, 86 Ga. 764, 13 S. E. 84. See ante, § 324- 64 See Pillow v. Santelle, 49 Ark. 430, 5 S. W. 783 ; Culver v. Judges Superior Court. 57 Mich. 25, 23 N. W. 469; HiJ v. Townlcy, 45 Minn. 167, 47 N. W. 653; Demuth V. Kennedy (N. J. Ch.) 13 N. J. L. J. 150; Collier v. Miller, 62 Hun (N. Y.) 99, 16 N. Y. Supp. 633, 42 N. Y. S. R. 66; New York Life Insurance Co. v. Aitkin, 58 N. Y. Super. Ct. (26 Jones & S.) 586 mem., 11 N. Y. Supp. 349, reversed in 125 N. Y. 660, 26 N. E. 732, 36 N. Y. S. R. 8; Boardman v. Dennaford, 23 N. S. 529. 65 Boardman v. Dennaford, 23 N. S. 529. This decision was by a di- vided court. 66 In Minnesota it is said the claim therefor must be presented, allowed, and enforced as other § 741] JUDGMENT FOR DEFICIENCY. 1087 deceased are not personally liable for the mortgage debt ; " yet a judgment for the deficiency in an action to foreclose a mortgage made by a testator may, under the New York Code,^' be rendered against a legatee who has received a sum from the estate, to the extent of tlie amount he has receivd.^^ It is said in New Jersey that a decree for deficiency entered on foreclosure cannot be enforced against heirs by execution first issued after defendant's death ; a bill and subpoena being nec- 70 essary. The supreme court of Alichigan, in the case of Culver v. Judges of Superior Court,'^ say the rule that no proceeding at law can be taken to enforce payment of a deficiency on foreclosure, without leave of the court in which the fore- closure was had, applies only to remedies upon the personal securities given with the mortgage, and not to an action begun by leave of the equity court upon the bond of the mortgagor's residuary legatee. And the supreme court of New York, in the case of the New York Life Insurance Company v. Aitkin,'^ say that an action against the executor of one who has assumed a mortgage on premises purchased cannot be maintained to recover a deficiency on foreclosure, where the executor was not made a party after the purchaser had died before the suit, and he had also been released by the immediate grantor. § 741. Judgment for deficiency against third persons. — In the absence of a statutory provision giving the court author- ity therefor, a judgment for the deficiency arising after the application of the proceeds of the sale of the mortgaged prem- ises to the payment of the debt secured, cannot be taken claims against the estate of the de- ^^ Collier v. Miller, 62 Hun (N. ceased mortgagor. Hill v. Townley, Y.) 99, 16 N. Y. Supp. 633, 42 N. 45 Minn. 167, 47 N. W. 653. Y. S. R. 66. ^"^ Pillow V. Santelle, A9 Krk. AZQ, ''O Dcmuth v. Kennedy (N. J. 5 S. W. 783. Ch.) 13 N. J. L. J. 150. 68 N. Y. Code Civ. Proc. §§ 1837- 'i 57 Mich. 25. 23 N. W. 469. 1841. 72 58 N. Y. Super. Ct. (26 Jones 1088 MORTGAGE FORECLOSURES. [§ 741 against any person liable for the debt, other than the mort- gagor himself.'^ And it has been held to be erroneous to ren- der a judgment against a person, who guaranteed the collec- tion of a note secured by a mortgage, for any deficiency which might be found due after the sale of the mortgaged premises ; the holder of the note and mortgage must exhaust his reme- dies against the mortgagor and the mortgaged property before he can proceed against the guarantor.'* A grantor of lands, the title to which is taken in the name of only one of the grantees, who gives his note, secured by mortgage on the lands conveyed, for the unpaid purchase money, is restricted, in the absence of fraud, accident or mistake, to the security so taken, and cannot recover a de- ficiency judgment against the other purchasers who did not sign the note.'^ On the same principle, a purchaser of part of mortgaged property, who has never assumed any personal liability for the mortgage debt, is not liable for a deficiency on a fore- closure thereof.'''^ But where the grantee of the whole or a portion of the mortgaged premises has assumed and agreed to pay the mortgage debt as part of the purchase price thereof, a judgment for deficiency may be rendered against him equal- ly with the mortgagor; and where such judgment is not award- ed in the decree the defect may be remedied by amendment Thus it has been held by the New Jersey court of chancery, in the case of Forman v. Manley,'''^ that the decree in fore- closure against a mortgagor grantor and a grantee who as- sumed the payment of the mortgage, may be amended & S.) 586, mem. 11 N. Y. Supp. 349, 53 N. W- 978. Compare Reynolds reversed in 125 N. Y. 660, 26 N. E. v. Diet2, 34 Neb. 265, 31 N. W. 747. 732, 36 N. Y. S. R. 8. See post, § 743. 73 See Doan v. Holly, 25 Mo. 357, '6 Hall v. Young, 29 S. C. 64, 6 26 Mo. 186 ; Faesi v. Goetz, 15 Wis. S. E. 938. 231. '^7 52 N. J. Eq. (7 Dick.) 712, 29 7* Borden v. Gilbert, 13 Wis. 670. Atl. 434. See Grand Island Sav. & See ante, § 253. L. Assoc, v. Moore, 40 Neb. 686, 59 1^ Reeves v. Wilcox, 35 Neb. 779, N. W. 115. § 741] JUDGMENT FOR DEFICIENCY. 1089 seventeen years after it was rendered, by inserting the clause of assumption; and the execution may be granted against the grantee on the motion of the mortgagor, where both defendants were served with process and notice of prayer for decree for deficiency, which was rendered, and it does not appear that the grantee had rehed on the defect in the bill, or will be prejudiced by the proposed amendment. In some states the only remedy against a third person liable for a mortgage debt for the deficiency arising upon the sale of the mortgaged property, is by a separate action at law after the deficiency has been ascertained. But where a complaint improperly joins these different causes of action, objection thereto must be taken by action or demurrer or it will be deemed to have been waived;'* if no objection is taken, a decree for the deficiency may be entered, although not ex- pressly authorized by statute.''^® The statutory jurisdiction for enforcing the collateral obligations of third persons upon a mortgage foreclosure is permissive and not obligatory, and will not be exercised to their prejudice, unless they have made 't necessary by their agreements.'" It has been held, that mere delay in foreclosing a mortgage, on which the interest has been regularly paid, if there has been no request or notice to foreclose, will not charge upon the mortgagee the consequences of a depreciation in the value of the property, and will not relieve persons liable for the payment of the mortgage debt as sureties from the effects of a judgment of deficiency. ^^ The supreme court of South Carolina say, in the case of ''^McCarthy v. Gerraghty, 10 ^^ Gage v. Jenkinson, 58 Mich. Ohio St. 438; Baird v. McConkey, 169. 20 Wis. 297; Gary v. Wheeler, 14 ^'^ Merchants' Ins. Co. of the City Wis. 281 ; Jessop v. City Bank of of New York v. Hinman, 34 Barb. Racine, 14 Wis. 331; Stillwell v. (N. Y.) 410, 13 Abb. (N. Y.) Pr. Kellogg, 14 Wis. 461. 110. See Newcomb v. Hale, 90 N. 79 McCarthy v. Gerraghty, 10 Y. 326, 43 Am. Rep. 173. Ohio St. 438; Gary v. Wheeler, 14 Wis. 281. Mortg. Vol. II.— 69. 1090 MORTGAGE FORECLOSURES. [§ 741 Edwards v. Dargan,®^ that a mortgagee in possession of prop- erty is not liable to any personal judgment in favor of a junior mortgage in an action by the latter to foreclose the mortgage, although the latter may be entitled to foreclose because the property is insufficient to pay both; and the Illi- nois court of appeals, in the case of McKenzie v. Hartford Life and Accident Insurance Company,*' say that a personal judgment should not be granted against the surviving hus- band and the heir-at-law of the mortgagor, in a suit to fore- close a mortgage to secure notes not signed by them, in the absence of proof that they have in any manner become liable for the payment of the notes. It is thought that in a suit by a trustee substituted in the place of an executor, to foreclose a mortgage given to the latter by defendant, judgment cannot be rendered against the trust estate for the balance above the mortgage found to be due to the defendant for services rendered the executor for the estate, in the absence of any agreement creating a lien on the estate.'* The New Jersey court of errors and appeals say in Dodd V. Fisher,'^ that a person who deposits a sum of money to obtain a postponement of a foreclosure sale for a specified time, and to indemnify the mortgagee against any deficiency that may arise on the sale, is not discharged from liability by the advice of the mortgagee's counsel to the sheriff to let a bid made at a sale stand without payment of a per- centage thereof as required by the conditions of sale, and by the failure of such bidder to take the property, and its subsequent resale at a smaller price, where the advice was not given under such circumstances as to indicate a disregard of the indemnifier's rights. 82 30 S. C. 177, 8 S. E. 858. Stanton, 47 N. Y. S. R. 422, 19 N. 83 42 111. App. 157. Y. Supp. 986. ^* United States Trust Co. v. 8531 Atl. 392. § 742] JUDGMENT FOR DEFICIENCY. 1091 § 742. Deficiency against assignor guaranteeing pay- ment. — The assignor of a bond and mortgage, who guarantees their payment, will be liable on such guaranty for any deficiency that may arise upon a foreclosure and sale.*^ While a person who has guaranteed the collection of a mort- gage is a proper defendant to a foreclosure, yet the decree of sale in such a case should provide that no execution shall issue against him until an execution against the parties primarily liable has been returned unsatisfied ; " such a guaranty is merely a conditional undertaking to pay any deficiency that may arise on foreclosure, and not an absolute guaranty to pay the debt."^ Where a guarantor dies pending an action to foreclose a mortgage, the court will have no power to order a judgment for deficiency against him nunc prO' tunc, for the mortgage debt; it will be necessary to revive the action against his per- sonal representatives." Under the Wisconsin statute,'" where a joint and several guaranty is secured by the mortgage of only one of the guar- antors, all of them may be made defendants to an action for the foreclosure of the mortgage, and a personal judgment may be obtained against them for any deficiency.^^ Where, 8^ Vanderbilt v. Schreyer, 91 N. Y. 392. See Officer v. Burchell, AA N. Y. Supr. Ct. (12 J. & S.) 575; Rushmore v. Grade, 4 Edw. Ch. (N. Y.) 84; Bristol v. Morgan, 3 Edw. Ch. (N. Y.) 142; Jar man v. Wiswall, 24 N. J. Eq. (9 C. E- Gr.) 267. Such a guarantor, although only conditionally liable, was prior to the adoption of the Code of Civil Procedure, by force of the statute (2 N. Y. Rev. Stat. 191, §§ 153, 154), properly made a party defend- ant in an action to foreclose the mortgage, and judgment therein against him for a deficiency was properly granted. Vanderbilt v. Schreyer, 91 N. Y. 392. See ante, §§ 253-256. ®' See Harlem Sav. Bank v. Mickelsburgh, 57 How. (N. Y.) Pr. 106; Leonard v. Morris, 9 Paige Ch. (N. Y.) 90; Curtis v. Tyler, 9 Paige Ch. (N. Y.) 432. 88 Vanderbilt v. Schreyer, 91 N. Y. 392. ^^ Grant v. Griswold, 82 N. Y. 569, aflF'g 21 Hun (N. Y.) 509. 90 Wis. Rev. Stat. § 3156. See also Cottrell v. New London Furniture Co. 94 Wis. 176, 68 N. W. 874. 91 Fon du Lac Harrow Co. v. Haskins, 51 Wis. 135- 1092 MORTGAGE FORECLOSURES. [§ 743 upon the sale of a bond and mortgage, the assignor guaran- tees their payment, he will not necessarily be released from his liability on such guaranty by the failure of the assignee to comply with a notice requiring him to collect the indebted- ness by legal proceedings, although the property may have de- preciated in value and the obligor become insolvent after the service of the notice. ^^ Where a person assigns a bond and mortgage, guaranteeing their collection, and thereby places himself in the position of a surety for the payment of the debt, and subsequently, for his indemnity, takes the bond of a third person as collateral security for such payment, the principal creditor will, in equity, be entitled to the benefit of such collateral security; and this is true, though he may not originally have relied upon the credit of such collateral security, nor known of its exist- ence. In an action to foreclose the mortgage, the obligor on such collateral bond may properly be made a defendant, to enable the plaintiff to obtain a decree against him for the payment of any deficiency which may remain after he has ex- hausted his remedy against the mortgagor.^^ Where a mortgagee, upon assigning his bond and mortgage, guarantees their payment, the extent of his liability in case of a deficiency, if he received less than the face of the mort« gage, will be limited to the actual amount paid for the bond and mortgage by the purchaser, with interest, although a larger consideration may be expressed in the assignment.^* § 743. Deficiency against party assuming mortgage. — Most of the states have enacted statutes, giving to their courts authority to render personal judgments in mortgage foreclos- ures for any deficiency arising after the application of the ^^Newcomb v. Hale, 90 N. Y. ^^Rapelye v. Anderson, 4 Hill 326, 43 Am. Rep. 173. See ante, (N. Y.) 472. See Goldsmith v. §§ 253-256. Brown, 35 Barb. (N. Y.) 484. 93 Curtis V. Tyler, 9 Paige Ch. (N. Y.) 432. § 743] JUDGMENT FOR DEFICIENCY. 1093 proceeds of tlie sale of the property to the payment of the mortgage debt; under such statutes a judgment for deficiency may be rendered against the mortgagor, or against a party who has assumed the payment of the mortgage debt,^* or against any one who has become a guarantor or surety of it,^^ or who has given a collateral undertaking for its payment.^' The supreme court of Kansas, in the case of the Northwestern ^5 Grand Island Sav. & Loan Assoc. V. Moore, 40 Neb. 686, 59 N. W. 115; Forman v. Manley, 52 N. J. Eq. (7 Dick.) 712, 29 Atl- 434; Johns V. Wilson, 180 U. S. 440, 21 S. Ct. 445 (Ariz). See Thompson V. Cheesman, 15 Utah, 43, 48 Pac. 477; Flint v. Winter Harbor Land Co. 89 Me. 420, 36 Atl. 634; Mar- shall V. Davies, 78 N. Y. 414; Gif- ford V. McCloskey, 38 Hun (N. Y.) 350; Douglass v. Wells, 18 Hun (N. Y.) 88; Tuttle v. Armstcad, 53 Conn. 175 ; Bassett v. Bradley, 48 Conn. 224; Bay v. Williams, 112 III. 91, 54 Am. Rep. 209; Birke v- Abbott, 103 Ind. 1, 53 Am. Rep. 474, 1 N. E. 485; Wright v. Briggs, 99 Ind. 563; Ellis v. Johnson, 96 Ind. 377; Logan v. Smith, 70 Ind. 597; Gage \- Jenkinson, 58 Mich. 169; Unger v. Smith, 44 Mich. 22; Fitz- gerald V. Barker, 70 Mo. 685 ; Heim V. Vogel, 69 Mo. 529 ; Bond v. Dol- by, 17 Neb. 491 ; Cubberly v. Yager, 42 N. J. Eq. (15 Stew.) 289; Vree- land V. VanBlarcom, 35 N. J. Eq. (8 Stew.) 530; Allen v. Allen, 34 N. J. Eq. (7 Stew.) 493; Trustees for support of Public Schools v. Anderson, 30 N. J. Eq. (3 Stew.) 366 ; Brewer v. Maurer, 38 Ohio St. 543, 43 Am. Rep. 436 ; Davis v. Hu- lett, 58 Vt. 90; Palmcter v. Carey, 63 Wis. 426. See also Biddle v. Pugh, 59 N. J. Eq. 480, 45 Atl. 626 ; Rabb V. Texas Loan & Investment Co. 96 S. W. 77 (Tex. Civ. App.) ; Howard v. Robbins, 67 App. Div. 245, 72, N. Y. Supp. 172. See ante, §§ 238-252. Where a party pur- chases real estate and assumes to pay one-half of certain mortgages thereon, he is a proper party to a foreclosure of one of the mort- gages, but he is liable to a personal judgment for only one-half of the mortgage debt. Logan v. Smith, 70 Ind. 597. The cases on this point, however, are not in harmony. Some of the courts hold that no action lies by the mortgagee, on a promise made to the vendee by the purchaser of an equity of redemption to assume and pay the mortgage on the land, as part of the consideration named in the deed, because it is a prom- ise to a third person. Mecch v Ensign, 49 Conn. 191, 44 Am. Rep 225 ; Wallace v. Furber, 62 Ind. 103 Prentice v. Brimhall, 123 Mass. 291 Booth V. Conn. Mut. Life Ins. Co 43 Mich. 299; Stuart v. Warden, 42 Mich. 154. But see Bassett v. Brad- ley, 48 Conn. 224. 9^ Jones V. Steinbergh, 1 Barb. Ch. (N. Y.) 250; Bristol v. Morgan, 3 Edw. Ch. (N. Y.) 142; Jarman v. Wiswall, 24 N. J. Eq. (9 C. E. Gr.) 267. See also Sauer v. Steinbauer, 14 Wis. 70. ^T Halsey v. Reed, 9 Paige Ch. (N. Y.) 446. 1094 MORTGAGE FORECLOSURES. [§ 743 Barb-Wire Company v. Randolph,®' say that a personal judg- ment is properly rendered in a mortgage foreclosure against a grantee of land who assumed to pay certain mortgages, and conveyed the land by warranty deed to one who executed a subsequent mortgage to the holders of the former, for the amount of the mortgages assumed; and the proceeds of such judgment should be applied upon the mortgages assumed, to protect both the person to whom the covenant was made and the grantee with warranty. The supreme court of Ne- braska say, in the case of Reynolds v. Dietz,®' that upon fore- closure of a mortgage upon land sold to several persons who each advance a portion of the consideration, taking title in the name of one in trust for the others and assuming the mortgage by making it part of the consideration, each of the persons advancing part of the consideration is liable for his proportion of the deficiency, according to the share owned by him, and no more.^ The mortgagee may also manitain an action at law against any such party whenever the attending circumstances justify the conclusion that the promise was made for his benefit.^ But a mortgagee's right to proceed in equity against one who has assumed to pay his mortgage, does not extend to a claim for the purchase money on a sale of the mortgaged premises, nor to the vendor's lien to secure it.' Where a person purchases mortgaged premises, assuming and agree- ing to pay the mortgage debt as a part of the consideration of the conveyance, he thereby merely agrees to pay his own debt to a third person, who, by an equitable subrogation, 98 47 Kan. 420, 28 Pac. 170. unpaid purchase money, in the ab- 9934 Neb. 265, 51 N. W. 747. sence of fraud, accident or mistake, 1 Compare: Reeves v. Wilcox, 35 the grantor is restricted in his judg- Neb. 779, 53 N. W. 978, in which ment for deficiency to the purchaser the court held that where the title who signed the note. to lands is taken in the name of 2 Bassett v- Bradley, 48 Conn. 224. only one of the grantees who gives ' Emley v. Mount, 32 N. J. Eq. his individual note, secured by mort- (5 Stew.) 470. gage on the lands conveyed, for the § 743] JUDGMENT FOR DEFICIENCY. 1095 Stands in the place of the promisee vendor.* In those cases where the mortgagor sells the equity of redemption subject to the mortgage, and the purchaser assumes and agrees to pay the mortgage debt as a portion of the purchase money, the grantee becomes personally liable for the payment of the debt in the first instance; if the mortgagor is subsequently compelled to pay such debt, he may recover it from his gran- tee in an action in equity or at law.^ While one who takes a deed of mortgaged land will be personally liable on the foreclosure of the mortgage, if his deed expressly binds him to pay the debt,^ yet a co\enant to pay cannot be implied from either the deed or the mortgage.' Where a purchaser accepts and holds under a deed contain- ing a clause reciting that he assumes and agrees to pay a note secured by an existing mortgage on the land, he thereby sub- jects himself to a liability for a personal judgment for any deficiency that may exist after the sale of the premises under a decree of foreclosure; and such liability may be enforced on the foreclosure.® ^Bassett v. Bradley, 48 Conn. wick, 100 N. Y. 628; Gage v. Jen- 224. See ante, §§ 238-252. kinson, 58 Mich. 169. 6 Comstock V. Drohan, 71 N. Y. « Gifford v. McCloskey, 38 Hun 9; Hartley v. Harrison, 24 N. Y. (N. Y.) 350; Bay v. Williams, 112 170; Russell v. Pistor, 7 N. Y. 171, 111. 91, 54 Am. Rep. 209; Scarry v. 57 Am. Dec. 509; Cornell v. Pres- Eldridge, 63 Ind. 44; Unger v. cott, 2 Barb. (N. Y.) 16; Ferris v. Smith, 44 Mich. 22; Winans v. Crawford, 2 Den. (N. Y.) 595; Wilkie, 41 Mich. 265; Carley v. Fox, TJmyer v. Marsh, 11 Hun (N. Y.) 38 Mich. 387; Miller v. Thompson, 501; Marsh v. Pike, 10 Paige Ch. 34 Mich. 10; Crawford v. Edwards (N. Y.) 595; Halsey v. Reed, 9 33 Mich. 360; Fitzgerald v. Barker, Paige Ch. (N. Y.) 447; Blyer v. 70 Mo. 685; Heint v- Vogel, 69 Mo Monholland, 2 Sandf. Ch. (N. Y.) 529; Davis v. Hulett, 58 Vt. 90: 478. As to the liability of the Gibson v. Hambleton, 52 Neb. 601 grantee of a grantee, see Marsh v. 72 N. W. 1033; Windle v. Hughes Pike, 10 Paige Ch. (N. Y.) 595. 40 Or. 1, 65 Pac. 1058; Fisher v ^ Ranney \. McMullen, S Ahh. (N. White, 94 Va. 236, 26 S. E. 573- Y.) N. C. 246; Wales v. Sherwood, In Lea v. Rabbri, 45 N. Y. Supr. 52 How. (N. Y.) Pr. 413. Ct. (13 J. & S.) 361, it was held '* Equitable Life Ins. Co. v. Bost- that where premises were conveyed, 1096 MORTGAGE FORECLOSURES. [§ 744 § 744. Mortgaged premises primary fund — Subsequent liability. — Where mortgaged premises are sold to a per- son who takes them subject to a mortgage and assumes and agrees to pay the mortgage debt as a part of the consideration for the conveyance, the mortgaged premises are the primary fund for the paym.ent of the mortgage debt,^ and thereafter, the party purchasing will be liable,^" and his grantor, the orig- inal mortgagor, will stand in the position of a surety to such defendant.^^ The obligation of the purchaser inures in equity to the benefit of the holder of the mortgage, ^^ who, upon fore- closure, is entitled to a judgment against such purchaser for any deficiency which may exist after the application of the proceeds of the sale to the mortgage debt.^^ "subject to a certain mortgage on the southerly portion of the same" made by the vendor, which mort- gage the vendee assumed and agreed to pay, by a clause in the conveyance, which stated that the amount of the debt has "been de- ducted from the consideration here- inbefore expressed," there is no equitable lien upon the mortgaged premises in favor of the vendor; this, though the vendee, after pay- ing interest for a certain time, makes default, and allows the mort- gage to be foreclosed and the vendor to be thereby charged with a judgment for deficiency. The as- sumption of the mortgage is pro tanto the consideration. A fortiori, there is no equitable lien upon that portion of the premises not covered by the mortgage. See ante, §§ 238- 252. ^ Boucofski V. Jacobsen, 36 Utah, 165, 26 L.R.A.(N.S.) 898, 104 Pac. 117; Birke v- Abbott, 103 Ind. 1, 53 Am. Rep. 474, 1 N. E. 485. And this is true, although the deed maj' contain a covenant on the part of the grantee to pay the mortgage debt, such covenant being intend- ed to indemnify the grantor against the contingency that the land may not bring enough to pay such debt. Wilbur V. Warren, 104 N. Y. 192. 10 Ellis V. Johnson, 96 Ind. 2,77. ^^ Drury v. Clark, 16 How. (N. Y.) Pr. 424. See ante, § 223 and chap. XI. 12 Wager v. Ling, 150 N. Y. 549, 44 N. E. 1103. See also Eakin v. Shults, 61 N. J. Eq. 156, 47 Atl. 274. 13 See Ricard v. Sanderson, 41 N. Y. 179; Ranney v. McMullen, 5 Abb. (N. Y.) N. C. 246; Thayer v. Marsh, 11 Hun (N. Y.) 501, aff'd 75 N. Y. 340; Comstock v. Drohan, 8 Hun (N. Y.) 372>, afif'd 71 N. Y. 9; Halsey v. Reed, 9 Paige Ch. (N. Y.) 446; Stiger v. Mahone, 24 N- J. Eq. (9 C. E. Gr.) 426; Hoy V. Bramhall, 19 N. J. Eq. (4 C. E. Gr.) 563, 97 Am. Dec. 687; Klap- worth V. Dressier, 13 N. J. Eq. (2 Beas.) 62, 78 Am. Dec. 69. § 745] JUDGMENT FOR DEFICIENCY. 1097 But where a mortgagor sells the mortgaged premises, re- ceiving the full consideration therefor, and his conveyance is not made subject to tiie payment of the mortgage, he will remain the principal debtor, and the land simply security for the debt, although the deed may contain no covenant of title on the part of the grantor." In an action to foreclose a mortgage, where more than one party is personally liable for the payment of the mortgage debt, the judgment should provide for issuing an execution for the deficiency against the several defendants in the order in which they are liable as principal or surety." § 745. Assumption of mortgage — Defense by gran- tee. — The purchaser of mortgaged premises, who assumes the payment of the mortgage as a part of the consideration of the conveyance, is liable to the mortgagee and is a proper party to foreclose under the Code ; ^® he is estopped from contesting the validity of the mortgage, and will be liable tc his grantor if the latter is compelled to pay any part of the mortgage debt." Proof of the recorded deed containing such covenants raises the presumption that the title is vested in the grantee and that he is liable." The grantor cannot, by any act or agreement of his own, release or affect his grantee's liability to the mortgagee, ex- cept where an oral agreement is made contemporaneously with the conveyance in which the grantee assumed the mort- gage, to the effect that the grantor will, at any time, accept a reconveyance and release the grantee from his covenant; 1* Wadsivorth v. Lyon, 93 N. Y. ^"^ Parkinson v. Sherman, 74 N. 201, 45 Am. Rep. 190. Y. 88, 30 Am. Rep. 268; Comstock ^^Luce V. Hinds, Clarke Ch. (N. v. Drohan, 71 N. Y. 9; Fair child Y.) 453; Weed v. Calkins, 24 Hun v. Lynch, 46 N. Y. Supr. Ct. (14 J. (N. Y.) 582; Curtis v. Tyler, 9 & S.) 1; Thayer v. Marsh, 11 Hun Paige Ch. (N. Y.) 432, 435. See (N. Y.) 501. See ante, §§ 238- ante, § 223 and chap. xi. 252. 16 N. Y. Code Civ. Proc. § 1627 ; ^^ Lawrence v. Farley, 24 Hun Ayers V. Dixson, 78 N. Y. 318. (N. Y.) 293. 1098 MORTGAGE FORECLOSURES. [§ 746 and where such a verbal agreement has been carried out, the HabiHty of the grantee on the mortgage will be extinguished.^' A grantee who assumes the payment of a mortgage will be deemed to have entered into an express undertaking to pay the debt, although he may not sign but merely accept the deed by which the conveyance is made.^° § 746. Assumption of mortgage — When grantee not liable for deficiency. — Where a grantee has assumed the payment of a mortgage, he will not be liable for a judgment of deficiency unless his grantor was liable.^^ Where a deed contains a covenant that the grantee shall pay the mortgage on the property, an extension of the time of payment by the holder of the mortgage will discharge the grantor ; ^^ and when the mortgagee releases the grantee, he will thereby discharge the mortgagor also from liability.^' ^^ Devlin v. Murphy, 5 Abb. (N. Y.) N. C. 242, 56 How. (N. Y.) Pr. 326. ^'^ Smith V. Truslow, 84 N. Y. 660; Atlantic Dock Co. v. Leavitt, 54 N. Y. 35, 13 Am. Rep. 556; Ricard v. Sanderson, 41 N. Y. 179; Belmont v. Coman, 22 N. Y. 438, 78 Am. Dec. 213; Collins v. Rowe, 1 Abb. (N. Y.) N. C. 97; Marsh V. Pike, 10 Paige Ch. (N. Y.) 595; Furnas v. Durgin, 119 Mass. 500, 20 Am. Rep. 341 ; Miller v. Thomp- son, 34 Mich. 10; Taylor v- Preston, 79 Pa. St. 436. See ante, §§ 250- 251. 21 Cashman v. Henry, 75 N. Y. 103, 31 Am. Rep. 437 ; Vrooman v. Turner, 69 N. Y. 280, 25 Am. Rep. 195; Smith v. Cross, 16 Hun (N. Y.) 487; Norwood v. DeHart, 30 N. J. Eq. (3 Stew.) 412; Jenkins V. Bishop, 136 App. Div. 104, 120 N. Y. Supp. 825 ; Eakin v. Shultz, 61 N. J. Eq. 156, 47 Atl. 274 ; New England Trust Co. v. Nash, 5 Kan. App. 739, 46 Pac. 987; Morris v. Mix, 4 Kan. App. 654, 46 Pac. 58; Hicks V. Hamilton, 144 Mo. 495, 66 Am. St. Rep. 431, 46 S. W. 432. See Williams v. VanGeison, 76 App. Div. 592, 79 N. Y. Supp. 95. See also Bonhoff v- Wiehorst, 57 Misc. 456, 108 N. Y. Supp. 437. But see Cobb V. Fishel, 15 Colo. App. 384, 62 Pac. 625. 22 Spencer v. Spencer, 95 N. Y. 353; Marshall v. Davies, 78 N. Y. 414, reversing 16 Hun (N. Y.) 606; Calvo V. Davies, 12> N. Y. 211, aff'g 8 Hun (N. Y.) 222, 29 Am. Rep. 130. See Knoblock v. Zschwefckc, 53 N. Y. Supr. Ct. (21 J. & S.) 391, 1 N. Y. State Rep. 238. ^^ Paine v. Jones, 76 N. Y. 274, afif'g 14 Hun (N. Y.) 577; Riggs V. Boucicault, 33 Hun (N. Y.) 667, 20 N. Y. Wk. Dig. 184. See Wood- ward V. Brown, 119 Cal. 283, 63 Am. St. Rep. 108, 51 Pac. 542. See ante, §§ 238-252. § 747] JUDGMENT FOR DEFICIEXCY. 1099 It has been held, however, that one liable for the deficiency will not be released because the time for completing the sale was extended and a resale subsequently ordered, without proceeding against the original purchaser to compel him to complete his purchase, if it does not appear that the purchaser was personally responsible and that his bid could have been enforced. Neither will he be released where it does not ap- pear that, if the resale had been ordered immediately, the mortgaged premises would have brought more; particularly is this true where no fraud was practiced and no request was made that the purchaser should be proceeded against, — for the plaintifif in a foreclosure may elect to apply for a resale or to compel the purchaser to complete his purchase.^* It has been held, where a grantee takes a conveyance by a warranty deed containing a covenant to pay the mortgage, and he is subsequently evicted by a paramount title, that he will not be liable on a judgment for deficiency, because the consideration for the covenant has wholly failed.^* And in an action to foreclose a mortgage, parol evidence is admissible to show that the clause in a deed, whereby the grantee as- sumes the mortgage, was inserted by mistake and without the knowledge of such grantee. ^^ And where the grantee in a conveyance containing such a clause, was unable to produce the evidence that the clause was inserted by mistake and al- lowed judgment to be taken against him by default, but two years later found the evidence, the judgment was opened on motion and he was allowed to come in and defend.^' § 747. Release from liability on assumption. — Whether the personal liability incurred by the grantee to the holder of a mortgage, by assuming its payment, can be released by a sub- 2* Goodwin v. Simonson, 74 N. Y. *^ DeyErtnand v. Chamberlain, 88 133. N. Y. 658. See ante, §§ 238-252. 25 Dunning v. Leavitt, 85 N. Y. 27 Trustees, &c. v. Merriam, 59 30, 39 Am. Rep. 617, reversing 20 How. (N. Y.) Pr. 226. See also Hun (N. Y.) 178. Union Dime Saving Institution v. Clark, 59 How. (N. Y.) Pr. 342. 1100 MORTGAGE FORECLOSURES. [§ 74? sequent agreement l^etween such grantee and his grantor, is an unsettled question.^® Thus, it is held in New Jersey, that the covenant by a grantee to pay the mortgage debt is a con- tract only for the indemnity of the grantor, and may be re- leased or discharged by him ; '^^ but that a release given with- out consideration by an insolvent grantor, after notice of fore- closure, and for the sole and admitted purpose of defeating the mortgagee's claim for a judgment of deficiency, is void in equity.^" On the other hand, it has been held in Illinois ^^ and in New York,^"^ that such an agreement to pay the mortgage debt, creates an absolute and irrevocable obligation in favor of the mortgagee, which cannot be released or affected by any act or agreement of the mortgagor or the grantee to which the mortgagee does not assent ; in other cases, it is held that such an agreement becomes irrevocable only after it has been accepted and acted upon by the mortgagee.'^ Where a grantee, who has assumed the payment of a mort- gage, subsequently reconveys the land in good faith to his grantor, who in turn assumes the payment of such debt, the liability of the first grantee to the holder of the mortgage will be thereby terminated.^* 28 See Judson v. Dada. 79 N. Y. port of Public Schools, 31 N. J. Eq. 373; Hartley v. Harrison, 24 N. Y. (4 Stew.) 290. See ante, § 251. 170; Douglass V. Wells, 18 Hun (N. ^o Trustees for the support of Y.) 88; Stephens v. Casbacker, 8 Public Schools v. Anderson. 30 N. Hun (N. Y.) 116; Bay v. Williams, J. Eq. (3 Stew.) 366. 112 III. 91, 54 Am. Rep. 209; Berk- ^^ Bay v. Williams, 112 111. 91, 54 shire Life Ins. Co. v. Hutchings, Am. Rep. 209. 100 Ind. 496; Young v- Trustees for ^^ Douglass v. Wells, 18 Hun (N. the support of Public Schools, 31 Y.) 88. See ante, §§ 250, 251. N. J. Eq. (4 Stew.) 290; Trustees ^^ See Berkshire Life Ins. Co. v. for the support of Public Schools Hutchings, 100 Ind. 496; Brewer v. V. Anderson, 30 N. J. Eq. (3 Stew.) Maurcr. 38 Ohio St. 543, 43 Am. 366; Brewer v. Maurer, 38 Ohio St. Rep. 436. 543, 43 Am. Rep. 436. ^^ Laing v. Bryne, 34 N. J. Eq. 29 Young v. Trustees for the sup- (7 Stew.) 52. But see ante. § 252. § 748] JUDGMENT FOR DEFICIENCY. 1101 § 748. No liability where deed subject to mortgage. — It is well settled that the acceptance of a conveyance con- taining words importing that the grantee will pay the mort- gage, which is a lien upon the premises purchased, binds him to discharge such incumbrance as effectually as though he had signed the deed. No express or formal words are neces- sary to create this obligation, as the liability depends entirely upon the agreement of the parties ; ^* yet the mere fact that the the grantee purchases subject to the mortgage, and that a clause to that effect was inserted in the deed, will not alone render the grantee personally liable for the mortgage debt nor create such liability ; the words used must clearly show that such obligation was intended by the one party and knowingly assumed by the other. ^^ As between the mortgagor and his grantee, the latter is secondarily liable for the whole mortgage debt, the land con- veyed being primarily liable.^' A grantee purchasing mort- gaged premises subject to the incumbrance, not being person- ally liable for the debt, will simply lose the premises in case of foreclosure,^* because in such case the land is the primary fund for the payment of the debt, and must be so applied. ^^ The most that can be claimed for the words "under and subject to" in a conveyance of land, is that as between the parties, they create a covenant of indemnity to the grantor on ^^ Belmont v. Coman, 22 N. Y. Woodbury v. Swan, 58 N. H. 380; 438, 78 Am. Dec. 213. Walker v. Goldsmith, 7 Oreg. 161. 36 Equitable Life Assurance Soc. See ante, §§ 238-252. V. Bostwick, 100 N. Y. 628; Smith ^t Moore v. Clark, 40 N. J. Eq. V. Truslow, 84 N. Y. 660; Collins v. (13 Stew.) 152. Rowe. 1 Abb. (N. Y.) N. C. 97; 38 fj//„a„^ v. fFt7^i>, 41 Mich. 264. Johnson v. Monell, 13 Iowa, 300; ^^ Johnson v. Corbett, 11 Paige Fiske V. Tolnian, 124 Mass. 254. 26 Ch. (N. Y.) 265; Halsey v. Reed, 9 Am. Rep. 659; Strong v. Converse. Paige Ch. (N. Y.) 446; Forgy v. 90 Mass. (8 Allen) 557, 85 Am. Dec. Merryman, 14 Neb. 516. See Rob- 732; Hall v. Morgan, 79 Mo. 47; erts v. Fitzallen. 120 Cal. 482, 52 Lawrence v. Towle, 59 N. H. 28; Pac. 818. 1102 MORTGAGE FORECLOSURES. [§ 749 the part of the grantee.*" Yet it is said that where a purchaser buys mortgaged premises from the mortgagor subject to the mortgage debt, though the deed may not in terms bind him to pay such debt, he is to be treated, as between himself and the mortgagor, as having assumed the mortgage, and is per- sonally liable for whatever deficiency may remain after the foreclosure sale." § 749. Oral contract of assumption may be enforced. — Where, at the time of conveying land, it is orally agreed that the grantee shall assume and pay a mortgage, for the payment of which the grantor is liable, the latter may, if sub- sequently compelled to pay it, recover the amount so paid from the grantee, though the conveyance contains no agree- ment on the part of the grantee to assume the mortgage, but is only made subject to it.**^ The grantee, however, may so con- tract with his grantor as to make himself personally liable to the mortgagee. Thus, where the amount of the mortgage debt forms a part of the consideration of the purchase, and by the contract is to be paid by the purchaser, he will be per- sonally liable where he has retained that amount out of the purchase money.*' But the deduction of the amount of the mortgage debt from the purchase price on a sale of the land, in the absence of an express agreement to pay, does not impose upon the grantee the absolute duty of paying the mortgage debt. While such deduction may be evidence of the grantor's in- tention to subject the land to such payment, it is not con- ^0 Taylor v. Mayer, 93 Pa. St. 42. not made full payment, he may be See Samuel v. Peyton, 88 Pa. St. held for such sums as remain due 465, also ante, § 254 and post, § 750. after he has been notified of the *^ Canfield v. Shear, 49 Mich. 313. complainant's equities. It was held by the supreme court of *2 Taintor v- Hemmingway, 18 Michigan in Sheldon v. Holmes, 58 Hun (N. Y.) 458. Mich 138, that on the dismissal of a *3 Smith v. Truslow, 84 N. Y. bill of foreclosure against a subse- 660; Winans v. IVilkie, 41 Mich, quent bona fide purchaser who has 264. See ante, § 254. § 750] JUDGMENT FOR DEFICIENCY. 1103 trolling nor conclusive, and it may be inferred that the deduc- tion was made to protect the grantee against an actionable incumbrance.** § 750. Intention of parties determines question ot assumption, — Whether a personal liability is assumed in any case is always dependent on the intention of the parties ; unless the parties have declared this intention in express words no liability will be incurred." If the deed merely recites that the land is taken subject to a certain mortgage, there will be no personal liability ; *® neither will the words "under and subject" to a mortgage which is specified, import a promise to pay, nor create a personal liability.*' And even the words "each assumed to pay the mortgage" have been held to create no personal liability.*® In those cases where there are words in the deed import- ing that the grantee is to pay the mortgage, subject to which he takes the land, he will be deemed to have entered into an express undertaking to do so by the mere acceptance of the deed, and by taking possession of the property under it.** The grantee of mortgaged premises will be liable for the payment of the mortgage debt only where such liability was a part of the bargain for the sale and conveyance of such ^* Bennett v. Bates, 94 N. Y. 354- land Savings Bank v. White, 4 Kan. 45 See Rutland Savings Bank v. App. 435, 46 Pac. 29. White, 4 Kan. App. 435, 46 Pac. 29; ^^ Ricard v. Sanderson, 41 N. Y. Blass V. Terry, 156 N. Y. 122, 50 179; Belmont v. Coman, 22 N. Y. N. E. 953. 438. 78 Am. Dec. 213; Lawrence v. *^ Belmont v. Coman, 22 N. Y. Fox, 20 N. Y. 268; Trotter v. 438, 78 Am. Dec. 213; Hull v. Alex- Hughes, 12 N. Y. 74, 62 Am. Dec ander, 26 Iowa, 569. 137; Vail v. Foster, 4 N. Y. 312; *''' See Girard Life Ins. & Trust Marsh v. Pike, 10 Paige Ch. (N. Co. V. Stewart, 86 Pa. St. 89; Len- Y.) 595; Halsey v. Reed, 9 Paige nig's Estate, 52 Pa. St. 135. See Ch. (N. Y.) 446; Curtis v. Tyler, ante, § 748. 9 Paige Ch. (N. Y.) 432; Blyer v. ^^ Southern Indiana Loan & Sav- MonhoUand, 2 Sandf. Ch. (N. Y.) ings Institution V- Roberts, 42 Ind. 478; Miller v. Thompson, 34 Mich. App. 653, 86 N. E. 490. See Kreid- 10. ler V.Hyde, 120 111. App. 505; Rut- 1104 MORTGAGE FORECLOSURES. [§ 751 premises.^" Therefore, where a clause is inserted in the deed of conveyance without the knowledge of the grantee, by which he is made to assume and agree to pay the mortgage, and he has no knowledge or notice of the insertion of such clause until after the commencement of foreclosure procedings, he may set up in his answer that the insertion of such clause was a fraud and without his knowledge, and he may have the deed reformed by striking out such clause.** § 751. No judgment of deficiency against non-resi- dent. — A personal judgment for deficiency cannot be rendered against a non-resident who has not appeared in the action, or who has not been personally served with the sum- mons within the state.®^ Where the statute provides for serv- ice by publication, a judgment obtained against a non-resident upon such service can be enforced against the mortgaged property only; such a judgment does not impose a personal liability upon him.*' But it has been said that due process of law, without which one cannot be bound by a judicial decree nor deprived of his property, does not necessarily require the personal service of a notice of the proceedings ; ** and that the legislature may de- clare that judgments obtained against a non-resident, upon service by publication, may be enforced against all property of such defendant found within the state where the judgment is rendered." 6" Parker v. Jenks, 36 N. J. Eq. »2 Schwinger v. Hickok, S3 N. Y. (9 Stew.) 398. Set Dey-Ermand v. 280; Lawrence v. Fellows, Walk. Chamberlain, 22 Hun (N. Y.) 110, Ch. (Mich.) 468. See ante, § 224. afif'd 88 N. Y. 658. See also Giesy 63 Schwinger v. Hickok, 53 N. Y. V. Truman, 17 App. D. C. 449. 280; Latta v. Tutton, 122 Cal. 279. 51 King, as trustee, etc. v. Sulli- 68 Am. St. Rep. 30, 54 Pac. 844. van, 31 App. Div. 549, 52 N. Y. 54 /„ ^e Empire State Bank, 18 Supp. 130. See Johns v. Wilson, 6 N. Y. 199, 215. See Schwinger v. Ariz. 125, 53 Pac. 583; DcyErmand Hickok, 53 N. Y. 284. V. Chamberlain, 88 N. Y. 658; Al- 55 See Bissell v. Briggs, 9 Mass. bany City Sav. Inst. v. Bnrdick, 87 462, 6 Am. Dec. 88; Boswell v. Otis. N. Y. 40. See ante, § 745. 50 U. S. (9 How.) 336, 13 L. ed. § 752] JUDGMENT FOR DEFICIENCY. 1105 § 752. No judgment of deficiency for installments not yet due. — On a mortgage foreclosure, a personal judg- ment cannot be rendered against the mortgagor, or other per- son liable for the payment of the debt, for any deficiency be- fore such debt becomes due according to the contract.*® It seems that a judgment of foreclosure for the whole amount due and to become due on several notes, secured by a mortgage or otherwise, is not erroneous, if rendered in conformity to law." But it has been said that whefe a mortgage securing a debt payable in installments, some, of which are due and others yet to become due, is foreclosed, the court can only direct, as to the installments not due, at what time and upon what default subsequent executions shall issue to collect the amounts of such installments.** Where a mortgage provides that, upon default in the pay- ment of an installment of the debt, or in the payment of the interest, the whole debt shall immediately become due and payable, a personal judgment may be entered for the whole amount upon the first default in the payment of the princi- pal or interest.*^ The supreme court of South Carolina, in the case of Patter- son V. Baxley,®° hold that a decree of foreclosure and sale rendered upon default in the payment of installments due, which, after ordering that upon the next installment becom- ing due the mortgagee have an order for the sale of the lands 164; Thompson v. Emmert, 4 McL. v. Harding, 11 Ind. 245; Lacoss v. C. C. 96; In re Linforth, 87 Fed. Keegan, 2 Ind. 406; Cecil v. Dynes. 386. 2 Ind. 266; Greenman v- Pattison. ^^Danforth v. Coleman, 23 Wis. 8 Blackf. (Ind.) 465; Darrow v. 528. See Skelton v. Ward, 51 Ind. Scullin, 19 Kan. 57; Adams v. Es- 46; Packard v. Kinzie Avenue sex, 1 Bibb. (Ky.) 149, 4 Am. Dec. Heights Co. 96 Wis. 114, 70 N. W. 623; Reddick v. Gressman, 49 Mo. 1066; also ante, § 225. 389; Bank v. Chester, 11 Pa. St. ^T Allen V. Parker, 11 Ind. 504. 282, 290, 51 Am. Dec. 547; Scheibe ^^ Skelton V. Ward, 51 Ind. 46. v. /v^m^cJj, 64 Wis. 564. 567 ; Man- See ante, § 225. ning v. McClurg, 14 Wis. 350. See ^^ Hatcher v. Chancey, 71 Ga. 689; ante, § 225. Miller v. Remley, 35 Ind. 539; Hunt ^f^ 33 S. C 354, 11 S. E. 1065. Mortg. Vol. II.— 70. 1106 MORTGAGE FORECLOSURES. {§ 753 for such installment, further orders that the mortgagee be at liberty, at any time thereafter when any deficiency shall be due, to apply to the court for an execution against all the defendants to collect the amount due, — includes the judg- ment for the deficiency, which is entered as of the date of the entry of the decree, although the deficiency is subse- quently ascertained and confirmed. § 753. Deficiency — How determined. — In a mortgage foreclosure the mortgagor is entitled to be credited on the mortgage debt only with the net proceeds realized from the sale of the premises, and will continue liable for all de- ficiency remaining unpaid. The amount of the deficiency is to be ascertained by deducting from the proceeds of the sale all taxes and other liens, together with the expenses of the sale, and by treating the balance as net proceeds, which must be credited upon the amount due on the bond and mortgage for principal and interest; the balance then remaining unpaid will be the deficiency.^^ A purchase by the plaintiff will not vary the rule.®^ It has been held that a defendant in an action in another state to recover the balance of the mortgage debt, after a foreclosure and sale of the mortgaged property in New York, cannot show that the real value of the property was greater 61 See Bailey v. Block, 134 S. W. Burr v. Feeder, 3 Wend. (N. Y.) 323 (Tex.) ; Sidcnherg v. Ely, 90 N. 412. See ante, § 225. Y. 257, 262-263, 43 Am. Rep. 163 ; ^ In the case of Cornell v. Wood- Marshall V. Davies, 78 N. Y. 414, ruff, 77 N. Y. 203, by the judgment 58 How. (N. Y.) Pr. 231, reversing in a foreclosure suit and by the 16 Hun (N. Y.) 606; Cornell v. terms of sale, all liens upon the Woodruff, 77 N. Y. 203 ; Williams premises for taxes and assessments V. Townsend, 31 N. Y. 411, 414; were to be deducted from the pro- Robinson v. Ryan, 25 N. Y. 320; ceeds of the sale. The plaintiff be- Eagle Fire Ins. Co. v- Pell, 2 Edw. came the purchaser. The premises Ch. (N. Y.) 631; Faure v. Winans, were situated in the city of Brook- Hopk. Ch. (N. Y.) 283, 14 Am. lyn, and at the time of the sale Dec. 545 ; Brevoort v. Randolph, 7 several years' municipal taxes were How. (N. Y.) Pr. 398; Weed v. in arrears, for which the mort Hornby, 35 Hun (N. Y.) 580, 582; gaged premises had been sold § 753] JUDGMENT FOR DEFICIENCY. 1107 than the amount for which it was sold.®' The judgment in a foreclosure fixes the amount due on the obligation and se- curity, and is a final adjudication on that point; and no ob- jections can be made to the issuing of an execution for the deficiency, unless they arose after the confirmation of the fore- closure sale and, recognizing the decree, tend to the satis- faction of the judgment.®* Under the existing statutes of Wisconsin, a personal judg- ment against the mortgagor for the whole amount of the mortgage debt, or even for the deficiency after a sale of the mortgaged property, cannot be entered with the decree of foreclosure, though such decree may include a direction for a subsequent judgment of deficiency, if demanded in the com- plaint. A judgment for deficiency can be entered only after such deficiency has been duly ascertained, and it can be as- certained only after the sale has been made and confirmed. A judgment in violation of this rule will be reversed.®^ The supreme court of South Carolina, in the case of Dial V. Gray,®® say that where joint debtors upon a note for a cer- tain amount give a mortgage upon a lot owned by them jointly, to secure a certain proportion of such debt, and one of them gives a mortgage upon his individual property to secure the balance of the debt, in the absence of anything to show to Certificates of sale had been issued, which were held by the plaintiff. No lease had been executed. After the foreclosure sale, the plaintiff caused the amount necessary to re- deem the premises from the tax sales to be deposited in the proper office, and furnished to the sheriff the certificate of deposit and re- demption, the amount of which he deducted from the purchase money as liens for taxes, and reported a deficiency against the mortgagor. Held no error ; that the certificates of sale were liens to the amount necessary to redeem, i. e. , the amount of taxes, expenses of sale and interest at the rate allowed by law upon such sales; and that the right to allow and deduct from the proceeds of sale the amount so necessary to redeem was not af- fected by the fact that the plain- tiff himself held the certificates. ^3 Belmont v. Cornen, 48 Conn. 338. 64 Haldane v. Sweet, 58 Mich 429. 65 Welp V. Gunther, 48 Wis. 543- See Bailey v. Block, 134 S. W. 323. (Tex.) 66 27 S. C. 171, 3 S. E. 84. 1108 MORTGAGE FORECLOSURES. [§ 754 the contrary, the respective parcels of land will be liable only for the portions of the debt secured upon them. § 754. When judgment for deficiency may be docket- ed. — In a mortgage foreclosure, a personal judgment can- not be rendered for the payment of any deficiency until the amount of such deficiency has been ascertained by the officer conducting the sale, and his report thereof has been confirmed by the court.^' Whatever may be the form of the debt, an absolute personal judgment for any deficiency cannot be ren- dered on foreclosure, but only a contingent judgment against the defendants to the extent of any deficiency which may remain after the sale of the mortgaged premises. ^^ It has been held that the court may make a contingent decree for the payment of any deficiency against the mort- gagor, or other party personally liable for the mortgage debt, previous to the sale or after it, without waiting for the con- firmation of the report of sale.^^ In New York there is no statutory limitation for the docketing of a deficiency judg- ment.'" The supreme court of New York say that under a mort- gage on lands partly in New York and partly in another state, the mortgagee is not bound to sell the land in the latter state before entering a judgment for deficiency.''^^ And the same ^iHall V. Young, 29 S. C 64, 6 S. E. 938. See Cook v. Moulton, as trustee, etc., 64 111. App. 429 ; Bache V. Doscher, 41 N. Y. Supr. Ct- (9 J. & S.) 150; DeAgreda v. Mantel, 1 Abb. (N; Y.) Pr. 130; Cobb v. Thornton, 8 How. (N. Y.) Pr. 66 Cormerais v. Genella, 22 Cal. 116 Mickle V. Maxfield, 42 Mich. 304 Howe V. Lemon, 2>1 Mich. 164 Clapp V. Maxwell, 13 Neb. 542, 547. See also Hastings v. Alabama State Land Co. 124 Ala. 608, 26 So. 881. (Vendor's Lien) ; Lowe v. Weil, 117 N. Y. Supp. 1025. ^^ Brown v. Willis, 67 Cal. 235. See Siewert v. Hamel, 3Z Hun (N. Y.) 44; Loeb v. Willis, 22 Hun (N. Y.) 508. ^^ McCarthy v. Graham, 8 Paige Ch. (N. Y.) 480. But see Cobb v. Thornton, 8 How. (N. Y.) Pr. 66. '^'^ Brown V. Faile, 112 App. Div. 302, 98 N. Y. Supp. 420. '^^ Clark V. Simmons, 55 Hun (N. Y.), 175, 8 N. Y. Supp. 74, 28 N. Y. S. R. 738. See also Tatum v. Bal- lard, 94 Va. 370, 26 S. E. 871. § 755] JUDGMENT FOR DEFICIENCY. 1109 court say, in the case of Hawley v. Whalen, '^ that a judg- ment for deficiency upon a foreclosure sale may properly be entered and docketed, notwithstanding a provision in the decree of foreclosure that a certain defendant pay any defi- ciency that may arise entitles plaintiff to issue execution therefor without further judgment. The supreme court of California, in the case of Toby v. Oregon Pacific Railroad Company,'^^ say that a deficiency judgment may be granted for the balance due, where a steamship, after a decree of foreclosure and sale thereof, has been sold by a receiver, under an interlocutory decree of the court, for less than the amount of the mortgage, and that sale has been confirmed, although California Code Civil Pro- cedure, § 726, provides for a deficiency judgment only "if it appears from the sheriff's return that the proceeds are insufficient." § 755. When judgment for deficiency becomes a lien. — A personal decree for the deficiency, after the application of the proceeds of the sale to pay the mortgage debt, does not have the force and effect of a judgment at law and become a lien upon the real property of the person against whom it is taken, until the excess of the mortgage debt over the pro- ceeds of the sale has been ascertained and a subsequent judg- ment at law has been docketed. ''* But it has been held in Indiana, that whenever in a proceeding to foreclose a mort- gage, the plaintiff is entitled to a personal judgment, and an order made under the statute, that after the sale of the mortgaged premises, the residue of the judgment remaining 72 64 Hun (N. Y.) 550, 19 N. Y. Y.) Pr. 130; Cobb v. Thornton, 8 Supp. 521, 46 N. Y. S. R. 512. How (N. Y.) Pr. 66; Englund v. 73 98 Cal. 490, 32 Pac. 550. Lewis, 25 Cal. 337; Chapin v. ''^Mutual Life Ins. Co. v. South- Broder, 16 Cal. 403. See N. Y. ard, 25 N. J. Eq. (10 C. E. Gr.) Code Civ. Proc. § 1250. French v. 337; Bell v. Gilmorc, 25 N. J. Eq. French, 107 App. Div. 107, 94 N. (10 C. E. Gr.) 104. See also Y. Supp. 1026. DeAgreda v. Mantel, 1 Abb. (N. 1110 MORTGAGE FORECLOSURES- [§ 756 unpaid, shall be levied on other property of the mortgagoi the judgment is from the date of its rendition a lien on all the lands of the mortgagor in the county/^ In California, such a judgment becomes a lien upon the property of the debtor only from the time it is docketed.'''^ § 756. Execution for deficiency. — Upon the usual de- cree for the amount of the deficiency against the mortgagor or other defendant personally liable for the mortgage debt, an execution cannot regularly issue prior to the filing and con- firmation of the report of the officer making the sale.'' Upon the coming in of the report of the referee, from which the amount of the deficiency is ascertained, it is not necessary to apply to the court for judgment against the mortgagor for such deficiency. The execution may be issued directly on the judgment of foreclosure.'* An execution for the deficiency on a foreclosure should not, as a rule, be issued without special application to the court upon notice to the defendant.'^ The decree in foreclosure making a defendant personally liable for any deficiency, taken together with the referee's report of the amount of such de- ficiency, furnishes a prima facie case against such defend- ant;*" but a defendant may resist an execution against him by showing objections which are not contradictory to the decree and which would operate to eflFect its satisfaction.** "^^ Fletcher v. Holmes, 25 Ind. 41 Wis. 54; Baird v. McConkey, 20 458. Wis. 297. '6 Cormerais v. Genella, 22 Cal. '^ Bicknell v. Byrnes, 23 How. 116. See Rowe v. Table Mountain (N. Y.) Pr. 486, 490, Moore v. JVater Co. 10 Cal. 441; Rollins v. Sliazv, 15 Hun (N. Y.) 428. See Forbes, 10 Cal. 299. Schulcr v. Fowler, 63 Kan. 98, 64 '''' Bank of Rochester v. Emerson, Pac. 1035. 10 Paige Ch. (N. Y.) 115, 10 Paige ^^McCrickett v. Wilson, 50 Mich. Ch. (N. Y.) 359. See Baclie v. 513; Giles v. Green, 42 Mich. 107; Doscher, 41 N. Y. Supr. Ct. (9 J. Clapp v. Maxwell, 13 Neb. 542. & S.) 150; Cobb v. Thornton, 8 ^'^ Ransom v. Sutherland, 46 How. (N. Y.) Pr. 66; Hanover Mich. 489. Fire Ins. Co. v. Tomlinson, 3 Hun ^^ Ransom v. Sutherland. 46