Sec. 599. Title, rights and liabilities of purchaser at foreclosure sale. The foreclosure of a mortgage relates back to the date of the execution and delivery of the mortgage, and operates to transfer to the purchaser at the sale the entire estate and interest which the mortgagor had at the date of the delivery of the mortgage, or at any subsequent date. Kuhnert v. Conrad, 6 N. Dak. 215 (69 N. W. Rep. 185). The title of a bona fide purchaser for value at a foreclosure sale had upon a decree which was voidable between the parties, cannot be collaterally attacked. Dunn v. Dunn, 114 Cal. 210 (46 Pac. Rep. 5). A purchaser at a foreclosure sale is entitled to the growing crops raised upon the land by a tenant of the mortgagor who leases with notice of the mortgage, after condition broken, without consent of the mortgagee. Reed v. Swan, 133 Mo. 100 (34 S. W. Rep. 483). Growing crops planted by a lessee after the decree of foreclosure were held to pass to the purchaser although the lessee was not made a party to the foreclosure proceedings and had mortgaged the crops to a third person. Shockey v. Johntz, 2 Kan. App. 483 (43 Pac. Rep. 993). As against a tenant in possession at the time of their commencement who has not been made a party to the foreclosure proceedings, a purchaser acquires no greater right than the mortgagor had. Wheat v. Brown, 3 Kan. App. 431 (43 Pac. Rep. 807). When, after a default in a mortgage, the mortgagee in apparent good faith makes a void foreclosure, and, after the year to redeem, the purchaser at the foreclosure sale takes possession under color of the foreclosure proceedings, he is a mortgagee in possession, and entitled to all the rights of such a mortgagee, whether he took possession with or without the consent, either express or implied, of the mortgagor. Such a purchaser entering under color of the foreclosure proceedings, enters adversely, not by the consent of the mortgagor, and continues to hold adversely from the time he enters; the statute of limitations begins to run in his favor at that time, and his possession for the period given by the statute for foreclosure of mortgages bars the right to redeem. Backus v. Burke, 63 Minn. 272 (65 N.W. Rep. 459). When a foreclosure sale is made under a decree providing that "said sale will be subject to the approval of said superior court, and, in case said court shall not

approve such bid as shall be made, the bidder will acquire no rights at such sale," the highest bidder at such sale has no right to resist an application for a resale made by the parties interested in the property. Central Trust Co. v. Gate City Elec. St. Ry. Co., 96 Ia. 646 (65 N. W. Rep. 982). A purchaser at a foreclosure sale, as against a co-tenant of the mortgagor, acquires only the title of the mortgagor, although the mortgage assumes to convey the entire fee. McMahill v. Torrence, 163 Ill. 277 (45 N. E. Rep. 269). Where one to whom a mortgage note is pledged causes a foreclosure sale and becomes the purchaser thereat, after notice to the pledgor that he would not bid the land any higher than was necessary to protect his claim, he is not liable to the pledgor for a profit realized from a subsequent sale of the land. Plucker v. Teller, 174 Pa. 529 (34 Atl. Rep. 208; 52 Am. St. Rep. 825).

Minn.

Sec. 600. Foreclosure by advertisement. Gen. Stat. 1894, §§ 1619, 6046, do not authorize a mortgagee after a foreclosure of his mortgage by advertisement, and a sale of the mortgaged premises, to pay taxes due thereon at the date of the sale, and reimburse himself for the amount so paid from the proceeds of the sale of the premises. Wyatt v. Quimby, 65 Minn. 537 (68 N. W. Rep. 109). In construing Minn. Gen. Stat. 1894, § 6051, requiring that the party foreclosing a mortgage shall make and file an affidavit of costs and disbursements "within ten days after foreclosure," it is held that the ten days begin to run, not from the day the property is offered for sale and struck off to the purchaser, but from the time the foreclosure sale is completed by the execution and recording of the certificate of sale; and although § 6038 of the statute requiring that the certificate of sale shall be executed and filed within twenty days after sale may be merely directory as to time, yet as the provision as to filing the affidavit of costs and disbursements is mandatory, a party "cannot extend the time for filing such affidavit by failing to procure and file his certificate within twenty days after sale. Larocque v. Chapel, 63 Minn. 517 (65 N. W. Rep. 941). Minn. Gen. Laws, 1878, ch. 53, concerning foreclosure of mortgages by

advertisement held constitutional. Lynott v. Dickerman, 65 Minn. 471 (67 N. W. Rep. 1143).

Under a statute requiring publication of notice of sale on foreclosure of property by advertisement to be made "for six successive weeks at least once in each week," the first publication must be made at least 42 days before the day of sale, or the foreclosure proceedings will be void; and the defect arising from a failure to so publish the notice of sale cannot be cured by retroactive legislation. Finlayson v. Peterson, 5 N. Dak. 587 (67 N. W. Rep. 953; 57 Am. St. Rep. 584; 33 L. R. A. 532). Applying S. Dak. Comp. Laws, § 5415, it is held that mere inaccuracies in the notice of foreclosure which are not calculated to be misleading, are insufficient to invalidate a title acquired thereunder, when the recitals of said notice readily convey to the mind all that the statute requires to be published. Iowa Inv. Co. v. Shepard, 8 S. Dak. 332 (66 N. W. Rep. 151). An advertisement giving notice of a mortgage sale under a power contained in a mortgage is sufficient although the mortgaged premises sold are described in it no more particularly than as being the premises described in and covered by said mortgage, to-wit: "Lot ninety-eight (98) and the westerly thirty-five (35) feet of lot one hundred (100), on East Fifth street, in Duluth Proper, First division, according to the recorded plat thereof, and fractional lot number three (3), and the westerly ten (10) feet of fractional lot Number four (4), in block one hundred and eight (108), in Portland division of Duluth, according to the recorded plat thereof," provided the plat is duly recorded. Bauman v. Granite Sav. Bank & T. Co., 66 Minn. 227 (68 N. W. Rep. 1074).

Sec. 601. Power of sale. Where an affidavit for a sale under a power recites a valid reason its sufficiency is not affected by the recital of an additional insufficient reason. Da Silva v. Turner, 166 Mass. 407 (44 N. E. Rep. 532). A power of sale may be made irrevocable by any act of the grantor where the instrument expressly stipulates to that effect. Ray v. Hemphill, 97 Ga. 563 (25 S. E. Rep. 485). As to revocation by death, see Vol. II, § 462. The exercise of a power of sale cannot be enjoined on account of usury in the transaction unless the transaction was absolutely void. Brant

ley v. Wood, 97 Ga. 755 (25 S. E. Rep. 499). While a mortgagee who undertakes to execute a power of sale is bound to exercise good faith, and to carefully guard the interest of the mortgagor, yet a stranger to the proceedings, finding them regular in form, and purchasing in good faith, for a valuable consideration, is not affected by unfaithfulness on the part of the mortgagee. Da Silva v. Turner, 166 Mass. 407 (44 N. E. Rep. 532). Where a power of sale provided that in case of the mortgagee's death his "legal representatives or assigns" are authorized to make the sale, and after the sale has been made his "heirs, executors, administrators, or assigns" are authorized to make the deed, it was held that both the sale and deed could be made by the mortgagee's administrator. Stevens v. Shannahan, 160 Ill. 330 (43 N. E. Rep. 350). Although a mortgage given to a building and loan association. matures upon the appointment of a receiver for such association he cannot foreclose under a power of sale in the mortgage, the association alone being authorized to do that. Strauss v. Carolina Interstate Bldg. & L. Ass'n, 117 N. C. 308 (23 S. E. Rep. 450; 53 Am. St. Rep. 585). See opinion for discussion of rules for adjusting the rights of borrowing members in building and loan associations. In North Carolina it is held that until the power of sale is exercised the legal title remains in the mortgagor and if he, before such power is exercised, divests himself, by a legal conveyance, of all his right, title and interest in the mortgaged premises there is nothing left upon which such power can be exercised, and any attempted exercise of it becomes utterly nugatory. In such a case the only remedy left for the mortgagee is to invoke the aid of a court of equity, which, by bringing in the purchaser from the mortgagor as a party, may enforce the lien of the mortgage by a sale of the mortgaged premises, and protect the rights of all concerned. Team v. Baum, 47 S. C. 410 (25 S. E. Rep. 275; 58 Am. St. Rep. 893). Where a mortgagor is in position to waive an irregularity in foreclosure proceedings under a power of sale, and to confirm and validate a sale of the mortgaged premises to the mortgagee for the full amount of the debt, with interest and all costs,-there being no person except the mortgagor who could at any time question the regularity of the sale,—and the mortgagor has within a reasonable time

caused a deed to be tendered conveying perfect title to the mortgagee, the latter cannot insist upon the invalidity in the foreclosure proceedings, repudiate the sale, and maintain an action to recover upon the mortgage note. Saxe v. Rice, 64 Minn. 190 (66 N. W. Rep. 268). Md. Code, Art. 66, § 6, applied-sale by attorney-failure to file notes. Heider v. Bladen, 83 Md. 242 (34 Atl. Rep. 836).

Sec. 602. Sale under power-Notice-ValiditySetting aside. Notice of foreclosure under a power need not state the names of those who have acquired an interest in the estate from the mortgagor since the mortgagee's title accrued; nor need it state for what breach of condition the land is sold. Da Silva v. Turner, 166 Mass. 407 (44 N. E. Rep. 532). Where a mortgage authorizes a sale under a power, "after advertising" in case of default, a purchaser of the mortgagor's equity of redemption is not entitled to personal notice of the sale. McIver v. Smith, 118 N. C. 73 (23 S. E. Rep. 971). The right to question a sale under a power on account of defective notice may be lost by long acquiescence in the sale. Quinn v. Perkins, 159 Ill. 572 (43 N. E. Rep. 759). The validity of a sale under a power is not affected by the pendency of suit by the mortgagor for an accounting in which it is admitted that something is due the mortgagee, no tender and refusal of such amount being alleged. Stevens v. Shannahan, 160 Ill. 330 (43 N. E. Rep. 350). Where by mistake the sale is made by a different person as agent than the one intended by the mortgagee and the sum realized is grossly inadequate, the sale will be set aside. Stacy v. Smith, 9 S. Dak. 137 (68 N. W. Rep. 198). A sale under a power, of an undivided half interest in lands when it should have been made of the whole thereof, is an irregularity rendering the foreclosure voidable at the instance of the mortgagor, or those claiming under him, but unless some steps are taken to avoid it the sale becomes binding on the parties, and the purchaser becomes a tenant in common with the mortgagor or his grantee with the right of partition with a lien upon the remainder of the land for any unpaid balance. Ehrman v. Alabama Mineral Land Co., 109 Ala. 478 (20 So. Rep. 112). Inadequacy of price alone will not of itself avoid a sale made