*378OPINION.
Black:The loss which the taxpayer deducted on his income tax return for the year 1934 was $10,748.48. The Commissioner in his determination of the deficiency allowed $3,045.58 of this loss as a capital loss under section 117 (a) of the Revenue Act of 1934. The Commissioner in his deficiency notice stated as follows:
A deduction of $10,748.48 claimed on your original return, representing loss resulting from your surrender of property to the mortgagee on a quit claim deed, has been disallowed and a capital net loss of $3,046.58, (30% of $10,151.94, revised loss claimed on amended return), has been allowed for the reasons stated herein.
*379The parties now agree that the taxpayer’s loss from the transactions in question was $9,355.95, instead of the amounts which he deducted in his original return and his amended return.
We think that, under decisions of the Board and the courts which we shall cite hereinafter, petitioner must prevail in his contention that the loss in question was an ordinary loss and deductible in full under section 23 (e).
We think that, under the facts which we have recited in our findings, this case falls within the purview of our decisions in C. Griffith Warfield, 38 B. T. A. 907; H. L. Bust, Jr., 38 B. T. A. 910 (petition for review dismissed May 29, 1939, C. C. A., 4th Cir.); and Lloyd Jones, 39 B. T. A. 531.
There is one fact in the instant case which was not present in either of the three cases cited. In the instant case, several months after the mortgage foreclosure sale, the taxpayer and his wife executed a quitclaim deed to the parties who were the purchasers at the sheriff’s sale. But we think this fact is without controlling significance, in view of the fact that the taxpayer received no consideration for the execution of the quitclaim deed.
It is the general law of mortgages that, where the mortgaged property is sold for an amount equal to the debt, the debt is extinguished and the mortgagor after such sale has no personal liability on the debt. See 2 Jones on Mortgages, sec. 1216. Not only is this the general law of mortgages, but it is also the law in Michigan, where this property was located and this mortgage was made. See Moore v. Smith, 95 Mich. 71 (1893), in which case the court, at page 65, said:
While it is true that a sale on statutory foreclosure satisfies the debt secured by the foreclosed mortgage to the extent of the proceeds of the sale and thus far releases the personal obligation, yet any party redeeming gets such an interest in the land as is necessary to protect him.
Therefore, it seems clear that, when on January 10, 1934, the mortgaged property was sold at a sheriff’s sale for $6,610.18, which amount equaled the balance due on the mortgage note at the time of sale, plus interest due, taxes, and costs of sale, taxpayer was no longer personally liable on the debt. The debt itself was extinguished.
But under Michigan law the taxpayer, notwithstanding the sheriff’s deed to the purchasers, dated January 10, 1934, retained legal title to the land until his right of redemption expired, which was one year thereafter. A purchaser on foreclosure sale, therefore, acquires no legal title to the realty, but only a right to be vested with legal title when the deed executed at the time of the foreclosure sale becomes finally effective at the end of the redemption period. The relevant provisions of the statutory law of Michigan on foreclosure of mortgages and the extinction of the right of redemption after foreclosure *380are sections 14433, 14434, and 14435, Michigan Compiled Statutes, 1929.
As to the nature of the interest which the mortgagor holds after the foreclosure sale and before the period of redemption has expired, the Michigan courts have held that it is a right of redemption which takes the place of his former equity of redemption held before the foreclosure sale. The court said in Roff v. Miller (1915), 189 Mich. 558; 155 N. W. 517, at pages 518, 519:
* * * It is now settled that the purchaser, at a foreclosure by advertisement, ordinarily acquires an equitable interest in the land which he may, during the period given for redemption, transfer in full to another. And that his assignee, if there is no redemption, will take the legal title when it matures exactly as the original bidder himself would have taken it. Gage v. Sanborn, 106 Mich. 269; 64 N. W. 32. * * * Such legal title does not vest at once upon the auction sale on statutory foreclosure (Jones on Mortgages, par. 1884), but only at the expiration of the period allowed for redemption. Until the end of that period the foreclosure proceedings may be abandoned, if the parties choose to do so, (Dodge v. Brewer, 31 Mich. 277), or a subsequent mortgagee may still demand an assignment of the mortgage. * * *
Therefore, the effect of the quitclaim deed which the taxpayer and his wife executed to Elizabeth S. Merritt and Ruth Sherrill on July 31, 1934, was simply to place the legal title in those who already held the equitable title by reason of the purchase which they made at the sheriff’s sale. No consideration passed from Elizabeth S. Merritt and Ruth Sherrill to taxpayer in exchange for the execution of the quitclaim deed. It is true that the quitclaim deed recites, among other things, that it is given “by John! R. McNaughton and Edna T. McNaughton, his wife in consideration of their release from all liability under a certain mortgage * *
But as we have already pointed out, McNaughton had already been released from all liability under the mortgage by reason of the fact that the mortgaged property sold for sufficient to pay off and satisfy in full the mortgage indebtedness, plus taxes, costs, etc. In view of this fact, the above quoted recital in the deed is without controlling effect. The effect of the execution of the quitclaim deed in question was simply to ripen the equitable title of the purchasers into legal title by ending the possibility of the exercise of the taxpayer’s right of redemption. It fixed definitely his time for taking the loss which had resulted from the foreclosure sale but which he could not take as a deductible loss until his right of redemption had expired. Cf. J. C. Hawkins, 34 B. T. A. 918; affd., 91 Fed. (2d) 354. It seems to us that the situation with reference to the execution of this quitclaim deed by the taxpayer and his wife is no different in its effect from that which we had before us in Commonwealth, Inc., 36 B. T. A. 850. In that case, the corporate owner of realty, subject *381to a mortgage upon which the owner was not personally liable, deeded the property to the mortgagee without consideration and thereby fixed its loss. We held that the loss so sustained was an ordinary loss, deductible in full, and was not a capital loss subject to the limitation under section 117 of the Revenue Act of 1934.
In the instant case, as we have already endeavored to point out, after the foreclosure sale on January 10, 1934, taxpayer had no personal liability on the mortgage debt and his only interest was a right of redemption which interest was similar in its consequences to the rights of the taxpayer in the Commonwealth case to secure title to the land by the payment of the mortgage subject to which the corporation had purchased the land.
We hold in the instant case, as we held in the 0ommowwealth case, that “Inasmuch as there was in fact no consideration to the petitioner the transfer of title was not a sale or exchange. The execution of the deed marked the close of a transaction whereby petitioner abandoned its title” (citing authorities). Cf. also C. G. Ganopuls, 39 B. T. A. 1120.
The case of Betty Rogers, 37 B. T. A. 897; affd., 103 Fed. (2d) 790, is distinguishable from the instant case for the reason that in the Rogers case, at the time the grant deed was executed by Will Rogers and his wife, Betty Rogers, in exchange for the surrender and cancellation of their promissory note for $38,000, the mortgage had not been foreclosed and the taxpayers had a personal liability upon the mortgage note and consequently the release and cancellation of that liability constituted valuable consideration to the taxpayers for the deed which they executed.
On the strength of the authorities cited above, we hold for petitioner on the only issue submitted to us for decision. The facts show a smaller loss than the taxpayer deducted on his income tax return.
Reviewed by the Board.
Decision will he entered v/nder Rule 50.