dissenting.
The purchaser of land at a sale upon foreclosure of a mortgage tabes the interest of the plaintiff as well as the defendant. If one who is not a party to the suit has an equity of redemption, that equity is subject to all the rights that the purchaser has by his purchase, including the lien of the mortgage foreclosed. In such case, if the purchaser tabes possession of the land, he becomes a'mortgagee in possession. As against the holder of the equity of redemption he must apply the rents and profits of the land in satisfaction of the mortgage and interest thereon. The statute of limitations will run against an action to redeem. Ejectment cannot be maintained against'a mortgagee in possession.
The petition 'in foreclosure described the land. The order of sale directed the sheriff to sell the land itself, and not a life estate. The sheriff published the notice that he intended to sell the land, and reported that he had done so. The court ordered that the sheriff “convey to the purchaser, John Campbell, by deed in fee simple, the lands and tenements so sold.” The sheriff’s deed described and conveyed the land itself, and not a life estate. The conclusion that the life estate of Eugene R. Currier alone was sold is derived entirely from the statement in the appraisement that “the interest of Eugene R. Currier, defendant, we value at $740.07.” The appraisement describes the land, and says that the land is valued at thé *23sum of $800; that the taxes thereon are $59.93. They deducted these taxes from the total value of the land, and appraised the remainder as the interest of Eugene R. Currier; that is, they appraised the land itself as the land of Eugene R. Currier. They were clearly justifiable in doing this, as there was nothing in the record of foreclosure indicating that Eugene R. Currier had only a life estate in the land. They considered that the land belonged to Eugene R. Currier, and therefore his interest was the value of the land, less the taxes due thereon.
The attempt was to foreclose the mortgage and sell the land, and, so far as they sold anything, it was the land itself. This sale did not foreclose the plaintiff’s equity of redemption, because he was not a party to the proceeding. His right to redeem remained after the sale the same as it was before, and he might have exercised that right at any time within the statute of limitations.
If the defendant in the foreclosure had held a mortgage upon the land, or a quitclaim deed of an undivided portion, the reasoning of the majority opinion would have led to the same erroneous conclusion.
Fawcett, J., concurs in the above dissent.