Dyer v. Schmidt , 67 Mont. 6 ( 1923 )

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

In an action pending in the district court of Powell county to foreclose a mortgage, wherein S. L. Dyer was plaintiff and Henry Schuman and others were defendants, such proceedings were had that a decree of foreclosure was duly given and made. Under that decree the mortgaged real estate was sold on December 4, 1920. Schuman and wife were the mortgagors and judgment debtors. Dyer was the assignee of the mortgagee and the purchaser of the property at the foreclosure sale. On March. 3, 1921, Schuman assumed to lease the property to W. H. Schmidt, Antone Zimmer and John Hamilton for the then unexpired portion of the period of redemption or until December 4, 1921, and under their lease the lessees went into possession. Dyer then commenced this action in ejectment to recover possession, upon the theory that as purchaser at the foreclosure sale he was entitled to possession during the period of redemption.

In their answers defendants set forth their claims as lessees under Schuman. At the trial plaintiff waived his claim for damages and at the conclusion of the testimony moved the court to direct a verdict in his favor. The motion was overruled and a verdict directed in favor of defendants. From the judgment entered upon the verdict, plaintiff appealed.

There is not any conflict in the evidence. The one question for determination is this: Is the purchaser of real estate at a foreclosure sale entitled to possession of the property during the period of redemption as against the judgment debtor and those claiming under him by leases made after the date of the sale?

In McQueeney v. Toomey, 36 Mont. 282, 122 Am. St. Rep. 358, 13 Ann. Cas. 316, 92 Pac. 561, this court held that an “execution sale transfers the legal title to the purchaser, leaving in the judgment debtor simply the right to redeem.”

In Hamilton v. Hamilton, 51 Mont. 509, 154 Pac. 717, we held that our statute does not give to the debtor the right of possession during the period of redemption, and that section 6843, Revised Codes of 1907 (sec. 9448, Rev. Codes 1921), implies that the purchaser under foreclosure sale is entitled to demand and receive the value of the use and occupation during that period. In Banking Corporation v. Hein, 52 Mont. 238, 156 Pac. 1085, it was held that the right of redemption is not property in any sense of the term, but a bare personal privilege. In Power Merc. Co. v. Moore Merc. Co., 55 Mont. 401, 177 Pac. 406, and in State ex rel. Hopkins v. Stephens, 63 Mont. 318, 206 Pac. 1094, the same doctrine was reaffirmed. In Citizens’ National Bank v. Western Loan & Building Co., 64 Mont. 40, 208 Pac. 893, the question was finally set at rest. It was held that the purchaser at execution or foreclosure sale is entitled to possession of the premises during the period of redemption as against the judgment debtor, and the decision of that ease is conclusive of this one. These defendants did not acquire any greater rights than Sehuman had, and Sehuman did not have any right, title, or interest in the property which he could transfer.

The eases above were decided under the Codes of 1907. In 1921 the legislature enacted a statute which created a single exception to the rule announced in the case last cited. That statute, now section 9449, Revised Codes of 1921, provides: “The purchaser of lands at mortgage foreclosure or execution sales is not entitled to the possession thereof as against the execution debtor during the period of redemption allowed by law while said execution debtor personally occupies the land as a home for himself and his family.”

The record before us discloses that neither Sehuman nor his wife occupied the premises after the foreclosure sale, hence they do not come within the exception.

The judgment is reversed, and the cause is remanded to the district court, with directions to enter judgment for the plaintiff.

Reversed with directions.

Mr. Chief Justice Callaway and Associate Justices Cooper, Galen and Stark concur.