BRYAN
v.
KALES
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A mortgagee in possession sought to foreclose on a mortgage held against an estate, and the estate's representative challenged the validity of the resulting judgment on several grounds, including that the mortgagee and estate representative were the same person. The Supreme Court affirmed the judgment without deciding those complex questions, relying instead on the established principle that a mortgagee in possession with an unpaid debt retains the right to possession and may foreclose even against a party holding only bare legal title who does not tender payment of the debt. The Court applied the English doctrine, which prevailed generally in the United States and in the Territory of Arizona, that a mortgagor or heir cannot recover possession without paying off the mortgage debt.
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Mr. Justice Shieas,
after stating the case, delivered the opinion of the court.
Whether the judgment in the case of Kales v. Kales, Administrator of the estate of Jonathan M. Bryan, was void, because of the alleged fact that the plaintiff, suing as a creditor of the estate to foreclose a mortgage, was the.same person who, as defendant, represented the estate ; whether the judgment was open' to attack collaterally ; and -whether Mrs. Yina Brown, who was the widow and sole heir of Jonathan M. Bryan, was estopped from assailing the judgment, by reason of having appeared and answered in the foreclosure suit, acknowledging the debt and consenting to the sale, are questions which we deem it unnecessary to determine. There was another ground of defence, so conclusive and free from difficulty that we prefer to place upon it our judgment affirming that of the court below.
It is admitted that the defendant below was a mortgagee in possession, with his debt past due and unpaid. The plaintiff was not offering to redeem, and had not tendered payment of the debt, but stood on the bare legal title, subject, if the foreclosure proceeding were void, to the lien of the unpaid mortgage and to the right of the mortgagee to retain possession until his debt was paid. This is the English doctrine, and it prevails generally in the United States. Birch v. Wright, 1 T. R. 378; Simpson v. Ammons, 1 Binney, 175; Hill v. Payson, 3 Mass. 559; Parsons v. Welles, 17 Mass. 419; Brobst v. Brock, 10 Wall. 519. And such, as we learn from the opinion of the Supreme Court of the Territory of Arizona in the present case, is the law of that Territory.
The judgment of the Supreme Court of the Territory of Arizona is accordingly
Affirmed.
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Quinn Plumbing Co., Inc. v. New Miami Shores Corp., 100 Fla. 413 (Fla. 1930)…e claiming under him. This right cannot be extinguished except by due process of law. After the foreclosure of a mortgage, redemption may be had by any person entitled to it who was not made a party to the suit. Bryan v. Kales, 162 [*417] U. S. 411, 40 L. Ed. 1020. The purchaser at such a sale takes the premises subject to the right of a junior mortgagee, who was not made party to the foreclosure of a prior mortgage, to redeem from the senior mortgage. Howard v. Milwaukee, etc., 101 U. S. 837, 25 L. Ed. 1081;…
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601 W. 26 Corp. v. Equity Cap. Co., 178 So. 2d 894 (Fla. 3d DCA 1965)…quires possession of property in good faith on a foreclosure sale which later is set aside holds as a “mortgagee in possession,” entitled to retain the property until the mortgage debt is paid or redeemed, or the property foreclosed. Bryan v. Kales, 162 U.S. 411, 16 S.Ct. 802, 40 L.Ed. 1020; Ponca City Building & Loan Co. v. Graff, 189 Old. 410, 117 P. 2d 514; Jasper State Bank v. Braswell, 130 Tex. 549, 111 S.W. 2d 1079, 115 A.L.R. 329; 37 Am.Jur. Mortgages §§ 795, 796; Annot., 115 A.L.R. 339; Annot., 40 L…
Authorities Cited
- Brobst v. Brock, 10 Wall. 519 (U.S. 1870)