Gunby v. Doughton

OPINION OF THE COURT PARKER, C. J. The question involved in this appeal is whether a mortgagor of real estate retains the right to possession after sale under a decree of foreclosure, and until the nine months’ period of redemption has expired, or whether the purchaser at the sale is. entitled to be let into possession immediately upon the confirmation of the sale. The subject is not specifically regulated by statute as it is in some states. These statutes provide that a certificate of sale, only, shall be delivered to the purchaser, but that deeds shall be delivered only after the redemption period has expired. In such case, of course, the mortgagor may retain possession during the redemption period, for his title, until that time, has not been passed to the purchaser. But in this jurisdiction, we have a different situation. In this connection it is to. be remembered that by a decree of foreclosure, and a decree of confirmation of sale thereunder, all of the right of the parties are merged and passed to the purchaser. The mortgagee no longer has any mortgage lien, and the mortgagor no longer has any title to the property. The sole right remaining to the mortgagor is the right to redeem, a right, which does not arise out of the mortgage or the decree, but a right which is extended to him by statute, whereby he may defeat the title of the purchaser. One section of the forcible entry and detainer statute bears upon this question and it is the fourth subdivision of section 2384, Code 1915, which provides: “When the defendant continues in possession after a sale by foreclosure of mortgage, or on execution, unless he claims by a title paramount to the mortgage by virtue of which the sale was made, or by title derived from the purchaser at the sale.” It is to be seen that this section puts foreclosure sales and execution sales upon the same basis. If an execution defendant is not entitled to possession during the redemption period of one year, a mortgagor is not entitled to possession after confirmation of the sale. To hold.that either are so entitled, would be to nullify, this statute. Counsel relies, upon Section 571, Code 1915, which provides that in the absence of a stipulation to the contrary, the mortgagor has the right to possession. This statute evidently refers to the time prior to foreclosure and sale, and has no application to the present consideration. It follows that the action of the court in issuing a writ of assistance and putting the purchaser into possession was correct, and should be affirmed; and it is so ordered. BOTTS, J., concurs. BRATTON, J., having tried the case below, did not participate in this, decision.