mortgage which was the subject of the foreclosure suit, the court will not pass upon the title, but leave the purchaser to his remedy at law. In any case, the exercise of this power in the foreclosure suit rests in the sound discretion of the court; and, where the title is doubtful, it will leave the parties to litigate the question in the courts of law. Nor does the right to this summary proceeding preclude the remedy by independent suit.1 1. When the report has been confirmed the purchaser is entitled to a conveyance upon the payment of the purchase-money where the sale has been for cash, or upon his otherwise complying with the terms of sale. Clason v. Corley, 5 Sandf. (N. Y.) 447; Myers v. Manny, 63 Ill. 332. His rights as purchaser cannot be prejudiced by any dereliction in the officer whose duty it is to distribute the surplus. Sinclair . Learned, 51 Mich. 335. Where the mortgagee is the purchaser no conveyance is necessary, as he is already invested with the legal title; and the sale confirms him in the possession of the property. Lannay v. Wilson, 30 Md. 536. The court may order the party in possession to surrender possession to the purchaser. Gorton v. Paine, 18 Fla. 117. It is the business of the purchaser to see that all persons from whom it is necessary to have conveyances are before the court; for if he takes a title which a decree in an imperfect suit does not protect, he must abide the consequence. Daniels Ch. Pl. & Pr. (5th Ed.) *1276. Where the court has complete jurisdiction of both subject-matter and person, a sale and conveyance in conformity with its decree is as effectual to convey the title as a sheriff's deed in pursuance of an execution at law. Miller v. Sherry, 2 Wall. (U. S.) 237. Where real estate is sold by the master under the decree of a court of chancery, and as for a good title, the purchaser can only demand such title as a vendee at private sale would be bound to accept from his vendor. Spring v. Landford, 7 Paige (N. Y.), 556. See Matter of Browning, 2 Paige (N. Y.), 64; Weems v. Brewer, 2 Harr. & G. (Md.) 390; Jackson v. Edwards, 7 Paige (N. Y.), 386. But where the sale is made under the assurance by the master at the sale that the purchaser will receive a perfect title, he will be relieved from the purchase if the title is not such as represented. Morris 7. Mowatt, 2 Paige (N. Y.), 586; Myers 7. Raymond, 5 Fla. 516. See Seamen v. Hicks, 8 Paige (N. Y.), 655. In Maryland the rule of caveat emptor applies to all judicial sales. Brown 7. Wallace, 4 Gill & J. (Md.) 479. See also Osterberg v. Union Trust Co., 93 U. S. 424; Brown v. Wallace, 2 Bland (Md.), 585; Thomas v. De Baun, I McCarter (N. J.), 37. The purchaser acquires title to only that which by the terms of the mortgage was subject to the payment of the debt. If the homestead be not properly released, he takes the surplus in value over the amount allowed for homestead; and if the homestead has not been set apart, he acquires no right to the possession. Frederick Parrot 7. Adam Kumpf, 102 Ill. 423. Where the mortgagor had, previously to the foreclosure suit, sold a part of the lands subsequently mortgaged, and this vendee was not made a party to the foreclosure suit, a purchaser of all the lands thereunder is entitled. C was assignee of certificate of sale by sheriff of land on execution against A, issued upon a judgment rendered subsequently to the execution of a mortgage upon the land by A to B, which mortgage was duly recorded. After the year for redemption had expired the sheriff made a deed to C. Subsequently, in a suit to foreclose the mortgage in which C was made a party, a sale of the real estate was made, at which B became the purchaser for a nominal sum. Before the expiration of the time for redemption C redeemed the land by paying into the clerk's office the amount, with interest, for which it was sold. Shortly after this B sued out another order of sale on his judgment. On this state of facts C instituted his suit to enjoin this sale. Held, that such suit would not lie; and further, that C, by virtue of his sheriff's deed, acquired only the title and interest that A had in the land at date of the judgment; that it was subject to the mortgage; and that the redemption by C from the sale to B did not free the land from the unpaid balance of the mortgage debt; and that this might be enforced by a resale of the mortgaged premises under an alias order of sale, as often as there was a redemption, until the mortgage was satisfied. Smith v. Moore, 73 Ind. 388. See further, on rights of purchaser at foreclosure sale, Martin v. Kelley, 59 Miss. 652. The purchaser at foreclosure sale of land dedicated to the city by the mortgagor subsequently to the mortgage, buys free from the dedication. Moore v. Little Rock, 42 Ark. 66. Where, prior to the foreclosure suit by the mortgagee, he had purchased the premises at tax sale, and after foreclosure took a tax deed, and sought to compel the purchaser at the foreclosure sale to redeem, held, that he cannot do so; that the tax lien, if foreclosed at all, should have been foreclosed with the mortgage. Young 2. Brand, 15 Neb. 601. At a foreclosure sale the purchasers entered into a parol agreement with persons to whom the mortgagor had contracted to convey part of the land, that if the vendees would permit them to bid at the sale without opposition they would recognize and fulfil said land contracts. It was held that these purchasers held the land subject to the equitable rights of the vendees in the land contracts. Martin v. Morris, 62 Wis. 418. A purchaser at foreclosure sale, made to enforce the collection of the original mortgage debt only, although he knew at the time he bid off the land that the holder of certain tax certificates as assignee of the mortgagee, and who was also assignee of the notes and mortgage, and plaintiff in the foreclosure suit, claimed a superior lien by virtue of these tax certificates (said mortgagee having acquired said tax certificates by virtue of his purchase at tax sale, and payment of subsequent taxes on the mortgaged premises, which he had so paid under a provision in the mortgage that he might pay the taxes in case mortgagor failed to do so, the amounts so paid to be added to the indebtedness secured by the mortgage, and to draw the same interest), was held to have acquired title by virtue of his purchase, which was unaffected by these tax certificates; that the lien of the mortgagee for the taxes so paid was created by contract, and was not superior to the other indebtedness secured by the mortgage. Held, further, that in an appropriate action by such purchaser these tax certificates were properly canceiled. Dickinson v. White, 64 Iowa, 708. Compare Poweshiek County v. Dennison, 36 Iowa, 244. A purchaser of a railroad at foreclosure sale of first mortgage, under a decree which provided that the sale should be made subject to liens established, or to be established (on references previously made, or then pending, with right to bondholders to appear and oppose), as prior and superior liens to the lien of the bonds under the first mortgage, is bound by the liens thus established, and cannot be heard to allege fraud as having been discovered subsequently to the master's report fixing the amount of the liens. Whether bondholders may be heard to contest these liens was not decided. Swan v. Wright's Ex. et al., 110 U. S. 590. Where the successful bidder at the foreclosure sale takes back his offer immediately after acceptance, and while competing bidders are still present, subsequent purchasers cannot resist the reopening of the sale. Miller v. Miller, 48 Mich. 311. To set aside sale, prompt action to that end must be taken upon the ascertainment of the facts upon which the application is based. Lyon v. Brunson, 48 Mich. 194. Nor will it be set aside because made in view of an unauthorized appraisement when it conforms to a prior and valid one as to the price realized. Hubbard v. Draper, 14 Neb. 500. Where the purchaser at foreclosure sale is neither mortgagee nor heir or personal representative of the mortgagee, the estate of deceased mortgagor is not liable to him upon the covenants of warranty contained in the mortgage deed. Parker et al., Admrs., v. Rodman, 84 Ind. 256. The purchaser is entitled to the property in the condition it was in at the date of the mortgage, as his deed relates to and operates to vest him with the title from that time; all fixtures, therefore, subsequently annexed and permanently attached to the property pass to him. Jones on Mort., vol. I., sec. 428 et seq.; Sands v. Pfeiffer, 10 Cal. 258; Gardner v. Finley, 19 Barb. (N. Y.) 317. So where, in a proceeding of strict foreclosure, a mortgagee comes into possession under its decree, a barn erected pending the suit on the premises by a stranger, with consent of mortgagor, will belong to the mortgagee. Preston v. Briggs, 16 Vt. 124. A decree to foreclose a second mortgage was made where a policy of insurance for $2000 had been issued to the owner of the equity of redemption, and made payable to the mortgagees, and in fact delivered to the first mortgagee, whose mortgage was for $1000. On the day of the sale ordered under the decree, and before the sale, the house insured was destroyed by fire. The owner of the equity of redemption, about eight days thereafter, made proof of loss; and five months later the insurers paid first mortgagee his mortgage in full, and took an assignment thereof. At the foreclosure sale the premises were purchased, and sheriff's deed executed to the purchaser, who sold the premises to the second mortgagee. On a bill filed to cancel first mortgage, on ground that the insurers ought to have paid the insurance money, the relief was granted, and the mortgage cancelled; the court holding that it was no defence that suit on the policy had not been brought within a year after the loss occurred. as the policy required, for the reason that by the assignment the insurers took the place of the first mortgagee, who might have sued on the policy; nor that, subsequently to the issuance of the policy, the premises were sold under the second mortgage; that an ordinary decree of foreclosure was not an alienation within the prohibitions of the policy, and that here the loss accrued before the sale under the decree; that inasmuch as the policy had been obtained by the owner of the equity of redemption, and premiums paid by her, the insurers were not subrogated, by virtue of the assignment, to the rights of the first mortgagee; the court holding that the claimant of the equity of redemption was the actual owner thereof, as a previous sale of her interest under a sheriff's sale had subsequently been annulled. Pearman v. Gould, 42 N. J. Eq. 4. He is not entitled to possession upon the certificate of purchase where the property has been sold subject to redemption; his title only becomes absolute upon the execution of the deed, which should not be made until the time for redemption has expired. Bennett v. Matson, 41 Ill. 333. If a tenant holds possession after the delivery of the deed by the commissioner who made the sale, he may be at once ejected, in case he has been made a party to the suit. Hirsch v. Livingston, 3 Hun (N. Y.), 9; N. Y. Code, sec. 2232. But foreclosure before expiration of the term will not prevent tenant from removing fixtures. Globe Marble Mills Co. v. Quinn, 76 N. Y. 23. Where the tenant went into possession pending the foreclosure suit, and raised and cut the grain before the suit was concluded, he was allowed to remove the same. Johnson v. Camp, 51 Ill. 219. The courts both of England and the American States compel the person in possession to surrender it to the purchaser, and enforce this requirement by an order, or by injunction, or by writ of assistance. Huguenin 2. Baseley, 15 Vesey (Eng.), 180; Dove v. Dove, i Bro. Ch. 375; Kershaw v. Thompson, 4 Johns. Ch. (N. Y.) 609; Dorsey v. Campbell, I Bland (Md.), 357; Frelinghuysen v. Colden, 4 Paige (N. Y.), 204; Planters' Bank v. Fowlkes, 4 Sneed (Tenn.), 461; Apple garth v. Russell, 25 Md. 317; Creighton 2. Payne, 2 Ala. 158; Buffum's Case, 13 N. H. 14; Montgomery v. Tutt, 11 Cal. 190; Aldrich 7. Sharp, 4 Ill. 261; Ballinger v. Waller, 9 B. Mon. (Ky.) 67. Not only as against a party to the suit, but also against any one who has come into possession under him pending the suit. Bell v. Birdsall, 19 How. Pr. (N. Y.) 491. Parties to the suit, and all others coming in under the decree, will be enjoined from disturbing the purchaser. Dorsey v. Campbell, I Bland (Md.), 357; Stackpole v. Curtis, 2 Moll. 504. Compare Huddleston v. Williams, I Heisk. (Tenn.) 579. The writ of assistance is discretionary, and will only be granted in a clear case, -Vanmeter v. Borden, 10 C. E. Greene (N. J.), 414;—and will be refused where the purchaser has left it doubtful whether or not he has not given the person in possession the right to remain. Barton v. Beatty, 1 Stew. (N. J. Eq.) 412. In ordinary cases the writ of assistance is the first and only process for giving possession of land under judicial sales. Valentine v. Teller, 1 Hopk. (N. Y.) 422; Fackler v. Worth, 2 Beasley (N. J.), 395; Irvine v. McRee, 5 Humph. (Tenn.) 554: Beatty v. De Forrest, 12 C. E. Greene (N J.), 482. See Ketchum v, Robinson, 48 Mich. 618. The purchaser was held entitled to possession in a case where the land was sold after death of mortgagor, but under a decree in the foreclosure suit rendered in his lifetime; the purchaser having, after the sale was confirmed, demanded possession of the mortgagor's widow, who refused to surrender the same, insisting that the sale was invalid, and that she was entitled to dower. Trenholm v. Wilson, 13 S. Car. 174. A purchaser waives his right to be released from the purchase, when, after having been informed of the defect, viz., the deficiency in the quantity of the land, he nevertheless complies with the terms of sale by executing his bond and mortgage, and accepting the title-deeds; and this waiver is unaffected by his notification to the officer who made the sale, that an abatement would be claimed on account of the deficiency. Mitchell v. Pinckney, 13 S. Car. 203. A personal decree for deficiency in foreclosure suit not allowable since statute of 1880, in New Jersey. Allen v. Allen, 34 N. J. Eq. 111, 493. In New York (2 R. S. 191, § 152) the power to render judgment for deficiency exists, and may be rendered against the XVI. Appeal.—Where the sale has been made before the appeal is taken, a reversal of the decree under which the sale was made, and the decree declared to be erroneous, will not affect the validity of the sale, even although the purchaser be a party to the suit. If there is a subsisting judgment or decree, and the court has jurisdiction, the purchaser need look no further. He will be protected in his purchase, although there be error in the record. Such is the general doctrine.1 Its necessity is obvious; otherwise, purchasers at judicial sales can have no assurance that they are safe in bidding. The contrary doctrine would destroy or greatly impair the salable value of property under decrees of the court. XVII. Foreclosure in Power of Sale Mortgages.-While mortgages with power of sale or in the form of trust deeds are now very generally adopted both in England and in the American States as furnishing, through the execution of the trust by the individual designated in the instrument for that purpose, a more convienient and expeditious mode of foreclosure than can be had through the courts, yet this method does not preclude resort to the courts for foreclosure under such instruments. Such species of foreclosure is regarded as cumulative merely. It enlarges, instead of diminishing, the rights of the beneficiaries in the mortgage. Such method of foreclosure as is in accordance with the practice of the courts of the State where the proceeding is to be instituted may be resorted to and a sale by judicial decree had; thus, either personal representative of the mortgagor. Glacius v. Fogel et al., 88 N. Y. 435. 1. Fergus v. Woodworth, 44 Ill. 374; Buckmaster v. Jackson, 4 Ill. 104; Blakeley v. Calder, 15 N. Y. 617; Holden v. Sackett, 12 Abb. Pr. (N. Y.) 473; Gray v. Brignardello, I Wall. (U. S.) 634; Gosson 7. Donaldson, 18 B. Mon. (Ky.) 230; Irwin v. Jeffers, 3 Ohio St. 389. In Gray v. Brignardello, 1 Wall. (U. S.) 632, Mr. Justice Davis says: Although the judgment or decree may be reversed, yet all the rights acquired at a judicial sale while the decree or judgment were in full force, and which they authorized, will be protected. It is sufficient for the buyer to know that the court had jurisdiction and exercised it, and that the order, on the faith of which he purchased, was made, and authorized the sale." See also Ward v. Hollins, 14 Md. 158; Clark v. Bell, 4 Dana (Ky.), 15; Goudy v. Hall, 36 Ill. 319; Iverson v. Loberg, 26 Ill. 179; Lewis v. Baker, 1 Head (Tenn.), 385. In England, a purchaser under a decree, although not a party to the suit, may ap peal from an order setting aside the bidding and ordering a resale. Ryder v. Earl Gower, 6 Bro. P. C. (Toml. Ed.) 306; 23. In England, an appeal lies from an interlocutory decree. 2 Daniel Ch. Pl. & Pr. *1463, note 1 (5th Ed.). So in some of the American States, although, as a general rule, the appellate court will not revise the action of the lower court, except there has been a clear abuse of discretion. Dollard v. Taylor, 33 N. Y. Sup. Ct. 496; Journeay v. Brown, 2 Dutch. (N. J. L.) III; Jones v. Halliday, 37 Ga. 569; Dale v. Kent, 58 Ind. 584: State v. Johnson, 13 Fla. 33; Wade v. Am. Col. Soc., 12 Mass. (4 Sm. & M.) 679; Callanan v. Shaw, 19 Iowa, 185. Where, before the date of a decree of foreclosure, the mortgagor disposed of his equity of redemption, an appeal from the decree subsequently taken by him was dismissed upon the ground that he had no remaining interest in the mortgaged premises. McDonald v. Workingmen's Building Association, 60 Md. 589. superseding the exercise of the power by the trustee, or donee of the power, or requiring its execution by him under the direction of the court.1 The option, however, to resort to a judicial foreclosure lies wholly with the mortgagee, or beneficiary in the trust deed, 2 although the trustee may, when the necessity exists, seek the direction of the court in the execution of the trust; and the mortgagor or his assignees may seek the protection and restraining process of the court against abuse of the trust on the part of the trustee.3 But whenever a sale is made under the decrees of the court, it must be in the execution of the power contained in the instrument, and its provisions as to the terms and mode of sale must be followed.4 XVIII. Foreclosure of Chattel Mortgages. The proceedings, and the rules and principles applicable thereto, for foreclosure of chattel mortgages are substantially the same as obtain in the foreclosure of land mortgages; and the jurisdiction of the court is as complete for the enforcement of the former as the latter.5 The concurrent remedies, and right of foreclosure in power of sale chattel mortgages, are as fully recognized as in case of land mortgages. (See CHATTEL MORTGAGES.) 6 1. The power of sale in the mortgage does not preclude the exercise of the jurisdiction of the court to foreclose by such mode as is in accordance with the practice of the court. Marriott v. Givens, 8 Ala. 694; Cormerais v. Genella, 22 Cal. 116; Atwater v. Kinman, Harr. (Mich.) 255: Slade v. Riggs, 9 Hare, 35. In McDonald v. Vinson, 56 Miss. 497, it is said that "a power of sale in a mortgage or deed of trust does not in any way affect the jurisdiction of a court of chancery to caforce the rights of the parties thereto, nor abridge in the slightest degree the right of a person secured by such instrument to resort to a court of chancery, as he might do if no such provision had been made for enforcing the security without the aid of a court. All the powers conferred by such an instrument are additional to what the law grants, and neither affects the jurisdiction of a court of chancery, nor the option the holder has to invoke its jurisdiction, as if the instrument contained no such provision. A power to sell, or appoint a trustee, enlarges the right of the person to whom it is given, but does not diminish it.' 2. See authorities supra. 3. Youngman 2. Elmira, etc., R. Co., 65 Pa. St. 278; Farmers' Loan & Trust Co. v. Hughes, 11 Hun (N. Y.), 130; Myers v. Estell, 48 Miss. 373. 4. Doolittle v. Lewis, 7 Johns. Ch. (N. Y.) 45; Beatie v. Butler, 21 Mo. 313; Rice v. Brown, 77 Ill. 549; Crenshaw v. Seigfried, 24 Gratt. (Va.) 272. Where a mortgagee holding under a mortgage containing a power of sale, has, by reason of the relief which he has sought in the court of equity, thrown persons claiming under the mortgage off their guard, it is proper that, before proceeding to sell by notice under the power, he should notify either the mortgagor or his assignee of his intention. Where, however, a specific demand of the amount due has been made, the person of whom such demand has been made cannot claim to have been lulled into security. If the mortgagee has no notice of the interest of one holding under the mortgagor, he is not bound to give such a one personal notice before selling under the power; nor to any one who has not been misled by his suit. Tartt v. Clayton. 109 Ill. 579. See Hairston v. Ward, 108 Ill. 87. 5. Blakemore v. Taber's Ex'r, 22 Ind. 595; Aldrich v. Goodell, 75 Ill. 452; Freeman v. Freeman, 17 N. J. Eq. 44; Packard v. Kingman, 11 Iowa, 219; Brown v. Greer, 13 Ga. 285; Charter v. Stevens, 3 Den. (N. Y.) 33. 6. Marx v. Davis, 56 Miss. 745; Briggs v. Oliver, 68 N. Y. 339. The suit, however, in the foreclosure of chattel mortgages is transitory, and not local, and the |
