1020). An action by the mortgagor under Minn. Gen. Stat. 1894, § 6052, against the owner of the mortgage to recover the costs, disbursements and attorney's fees included in the foreclosure sale, where an affidavit provided for by § 6051 has not been filed, is not limited to a time within one year, the one year limitation applying only where the mortgagor seeks to recover the penalties embraced in § 6052. Brown v. Baker, 65 Minn. 133 (67 N. W. Rep. 793). Minn. Gen. Stat. 1894, § 6051, held mandatory. Brown v. Baker, 65 Minn. 133 (67 N. W. Rep. 793); Larocque v. Chapel, 63 Minn. 517 (65 N. W. Rep. 941). These cases follow cases epitomized in Vol. IV, § 550, page 554.

Sec. 588. Appointment of receiver in foreclosure proceedings. Upon the foreclosure of a mortgage containing no stipulation as to the right of possession, it is held under Neb. Code Civ. Proc., § 266, authorizing the appointment of a receiver "in an action for the foreclosure of a mortgage, when the mortgaged property is in danger of being lost, removed, or materially injured, or is probably insufficient to discharge the mortgage debt," that the plaintiff is entitled to the appointment of a receiver to take charge of the property and collect the rents and profits, pending an appeal from an order confirming the foreclosure sale, when it is disclosed that the mortgaged property is "probably insufficient to discharge the mortgage debt," and the power of the court to make such appointment is not affected by Neb. Comp. Stat., ch. 73, § 55, providing that "in the absence of stipulations to the contrary the mortgagor of real estate retains the legal title and right of possession thereof." Philadelphia Mortg. & Trust Co. v. Goos, 47 Neb. 804 (66 N. W. Rep. 843). See opinion for collation and review of authorities. See Real Actions.

Sec. 589. Counterclaims and cross-bills in foreclosure proceedings. In an action against a mortgagor to foreclose a real estate mortgage he may maintain a counterclaim against the plaintiff for the wrongful taking of personal property under a chattel mortgage executed to secure the same debt and as part of the same transaction. McHard v. Williams, 8 S. Dak. 381 (66 N. W. Rep. 930; 59 Am. St. Rep.

766). In an action to foreclose a purchase money mortgage, although given upon land other than that purchased, the defendant may be granted relief on account of failure of title although the deed purported to convey a fee simple estate, but in fact conveyed only a life estate, all parties acting under an erroneous legal conclusion. Wilson v. Ott, 173 Pa. 253 (34 Atl. Rep. 23; 51 Am. St. Rep. 767). In an action to foreclose a purchase money mortgage the vendee may claim an allowance for waste committed by the vendor remaining in possession; and he may also claim an abatement from the mortgage on account of a shortage in acreage of the land conveyed, the vendor having been guilty of fraudulent representations as to the amount of the land. McMichael v. Webster, N. J. Eq. (35 Atl. Rep. 663). A cross complaint by a defendant judgment creditor claiming priority over a mortgage, must allege that his claim was a lien on the mortgaged premises at the time of the execution of the mortgage. Dudenhofer v. Johnson, 144 Ind. 631 (43 N. E. Rep. 868). Applying S. C. Code Civ. Proc., § 296, which authorizes a court to give judgment "for or against one or more of several plaintiffs, and for or against one or more of several defendants, and it may determine the ultimate rights of the parties on each side or between themselves; and it may grant the defendant any affirmative relief to which he may be entitled," it is held that an answer by a second mortgagee who is a defendant, when duly served on the defendant's mortgagor, may be treated as a cross bill and foreclosure of such second mortgage may be decreed against the land described in the complaint as well as other lands, and a judgment rendered for deficiency, where plaintiff's rights would not be prejudiced. Phillips v. Anthony, 47 S. C. 460 (25 S. E. Rep. 294).

Sec. 590. Adjudication of adverse claims of third parties in foreclosure proceedings. Where the action to foreclose a mortgage is against the mortgagor and others claiming to hold the legal title the priority of such title may be determined. Pennsylvania Mortg. Inv. Co. v. Gilbert, 13 Wash. 684 (45 Pac. Rep. 43). Where a third party claiming the property under a tax title is made a defendant, and such title cannot be litigated in the foreclosure suit it is pro

Shafer v. Thompson, 109 Where after one intervenes

per to dismiss the action as to him. Mich. 406 (67 N. W. Rep. 511). in foreclosure proceedings and claims a superior interest in part of the lands to be affected, the complaint is so amended as to exclude such lands, the intervener has no interest in the proceedings and his petition may be dismissed. Murphy v. Cannon, 18 Mont. 348 (45 Pac. Rep. 216).

An independent claim of paramount title held adversely to the mortgagee and mortgagor cannot be properly litigated in a foreclosure suit, and where one claiming such title is, for other reasons, a necessary party he may have such claim exempt from the operation of the decree. Wells v. American Mortg. Co., 109 Ala. 430 (20 So. Rep. 136). The court say: "The estate or interest in the lands which is drawn within the operation of the suit, which will be affected and bound by the decree, is the estate created and passing by the mortgage, or estates or interests subsequently acquired by the mortgagor, inuring by way of estoppel to the benefit of the mortgagee. Prior or subsequent incumbrancers are proper parties, for they do not hold or claim in hostility to the title of the mortgagor; they claim under and through him. But parties claiming by independent, distinct titles, adversely to the mortgagor and mortgagee, are not proper parties. The suit cannot be properly constituted for the purpose of litigating such titles. The parties in whom they reside derive from them no rights or interests the decree of foreclosure can affect, and are without right to resist its rendition. 2 Jones, Mortg., § 1440; City and County of San Francisco v. Lawton, 18 Cal. 465 (79 Am. Dec. 187); Randle v. Boyd, 73 Ala. 282; Lyon v. Powel, 78 Ala. 351; Hambrick v. Russell, 86 Ala. 199 (5 So. Rep. 298); Bolling v. Pace, 99 Ala. 607 (12 So. Rep. 796).”

Sec. 591.

Foreclosure against deceased mortgagor

-Filing claim against estate. Where the mortgagor is

deceased, a complaint alleging the due filing of a claim for the mortgage debt against his estate, which was approved and allowed, is sufficient upon demurrer, and taxes and insurance paid by the mortgagee, as authorized by the mortgage, subsequent to the allowance of the claim against the estate may properly be included in the decree of foreclosure. Humboldt

Sav. & L. Soc. v. Burnham, 111 Cal. 843 (43 Pac. Rep. 971). A statute (Cal. Code Civ. Proc., § 1500) requiring all claims against a decedent to be presented against his estate for allowance before any action can be maintained thereon, does not apply to a mortgage existing on land when purchased by the decedent and for which he was in no way personally liable. Ryan v. Holliday, 110 Cal. 335 (42 Pac. Rep. 891). Under S. Dak. Comp. Laws, § 5790, with the exception of a deficiency found to exist after a foreclosure sale, it is not necessary to present to an administrator a claim secured by mortgage upon the real property of a decedent. Kelsey v. Welch, 8 S. Dak. 255 (66 N. W. Rep. 390). Construing Mills' Ann. Colo. Stat., § 4780, which provides that all claims against a decedent's estate "not exhibited within one year, shall be forever barred, unless such creditor shall find other estates of the deceased not inventoried," and § 4783, providing that a creditor who has a claim secured by mortgage shall not be allowed to foreclose his mortgage "within one year from the death of the testator or intestate, unless by the permission of the county court having charge of the estate, and in no event until their debts or claims have been first proved and allowed by such court," it is held that § 4780 does not apply to claims secured by mortgage, and under § 4783 a mortgage claim may be foreclosed if it has been presented while the estate was in process of administration although after the expiration of the year. Sullivan v. Sheets, 22 Colo. 153 (43 Pac. Rep. 1012). Cal. Code Civ. Proc., § 1497, applied-filing of mortgage claim against decedent's estate. Consolidated Nat. Bank v. Hayes, 112 Cal. 75 (44 Pac. Rep. 469).

Sec. 592.

Rights of prior incumbrancers. Where the holder of a prior mortgage is not made a party to an action to foreclose a junior mortgage his rights are not affected by any decree rendered therein. Ferguson v. Tarbox, 3 Kan. App. 656 (44 Pac. Rep. 905). Where a junior mortgagee who has full knowledge of the existence of a first and prior mortgage on the premises brings an action to foreclose his mortgage, making a senior mortgagee a party or serving him with notice only by publication, causes an erroneous decree to be entered foreclosing his mortgage and directing that the proceeds of

the sale to be first applied to the payment of his debt, and barring the holder of the first mortgage, such judgment may be set aside upon timely application by the senior mortgagee, and where the premises were worth more than the amount of his mortgage and have passed into the hands of an innocent purchaser, he may maintain an action against the second mortgagee for the amount of his claim. Mortgage Trust Co. v. Cowles, 3 Kan. App. 656 (45 Pac. Rep. 605).

Sec. 593. Rights of junior incumbrancers. A junior lienholder may show that the obligation secured by the mortgage has been fully paid and that the mortgage has been kept outstanding in order to defeat his lien. McGillivray v. Mc Gillivray, 9 S. Dak. 187 (C8 N. W. Rep. 316). A junior mortgagee in a foreclosure case, who does not pray for a foreclosure, is entitled only to a decree fixing his priority, and directing distribution in case of sale accordingly. Seeley v. Wickstrom, 49 Neb. 730 (68 N. W. Rep. 1017). A junior mortgagee cannot, in case of insolvency of the debtor, plead usury against a prior incumbrance, Stickney v. Moore, 108 Ala. 590 (19 So. Rep. 76); and he is not entitled to the reversal of a decree foreclosing a prior mortgage on account of excessive interest where the property failed to bring the amount due the plaintiff aside from such interest; or for an allowance of attorneys' fees which was less than the amount stipulated for in the mortgage. Primley v. Shirk, 163 Ill. 389 (45 N. E. Rep. 247). A junior mortgagee, who has not been made a party to the proceeding foreclosing the senior mortgage, has thereafter a right to redeem from such senior mortgage, and a court cannot deny him this right because its exercise would be unprofitable. Cram v. Cottrell, 48 Neb. 646 (67 N. W. Rep. 452; 58 Am. St. Rep. 714). The right of a junior incumbrancer to foreclose his mortgage and have a sale of the land is not defeated by a prior foreclosure of a senior mortgage and sale thereunder, the purchaser taking possession, of which he had no notice, although the amount of the prior mortgage far exceeds the value of the land. Denton v. Ontario Co. Nat. Bank, 150 N. Y. 126 (44 N. E. Rep. 781). While a junior mortgagee cannot, by purchase at a tax sale, acquire a title which shall defeat the lien of a senior incumbrancer, yet he