Pioneer Savings & Loan Co. v. Farnham

Gilfillan, C. J. Farnham executed to plaintiff a mortgage upon real estate, with the ordinary habendum clause, “to have and to hold [318] the same-with all and singular the use, income, rents, profits,” etc. Under a power of sale in the mortgage plaintiff foreclosed it by sale June 13, 1891, becoming itself the purchaser at a price sufficient to cover the full amount due on the mortgage and costs and expenses of sale. It brings this action to have a receiver appointed to collect the rents accruing during the year for redemption, and pay them to it. Assume that the mortgage also pledged the rents and profits as security for the debt, and still it is impossible to see how such an action can be maintained. The remedy upon the mortgage as a security was exhausted by the foreclosure. It thereupon became, as security, functus oficio, and its only future office was as a muniment of title, in case of the mortgagor’s failure to redeem. The debt it secured ceased to exist. After the foreclosure the rights of the parties were to be measured, not by anything in the mortgage, except so far as it was a muniment of title, or in the note it secured, but by the statute. That gave to the mortgagor the right to redeem within a year, and the right of possession meantime; to the purchaser the right to become absolute owner of the real estate, or to receive the price bid, with interest. These rights are absolute, and the parties cannot be deprived of them. The relief sought by plaintiff would deprive the mortgagor of the right to the possession before the time to redeem expires. (Opinion published 52 N. W. Rep. 897.) Orders affirmed. (Opinion published 52 N. W. Rep. 897.)