(dissenting). In August, 1913, Jesse Henry purchased a section of land in 153-58, paying in cash $5,000, and giving a mortgage to secure the balance, $17,400, in sixteen annual payments of $1,000 each and one payment for $1,400, with interest at 6 per cent, according to seventeen promissory notes. The mortgage was transferred to the plaintiff November 25, 1916, and on March 7, 1917, the plaintiff published a notice of foreclosure by advertisement, claiming that default had been made in the payments, and that the mortgagee elected to declare duo the sum secured by the mortgage, amounting to $18,855.80. On April 23, 1917, the land was bid in by the plaintiff for said sum, with attorneys’ fees $412.11, and other costs, making the total sum $19,297.82. During the year 1917, defendant remained in possession of the land as the owner of the same, and in September, 1917, this action was commenced to recover from him $5,000 as the value of the use and occupation during the year. On November 20, 1917, the jury gave a verdict in favor of the plaintiff for $960, on which judgment is duly entered and defendant appeals.
Manifestly the foreclosure is a Shylock or a cut-throat procedure. It should be held void. It was not made fairly and in good faith. It was made for the purpose of tailing an unconscionable advantage of the defendant, and obtaining title to his land under the forms and technicalities of the law, and not to obtain the purchase money. When defendant paid his good $5,000 on the price of the land, he contracted to pay the balance of $17,400 in equal annual payments, with interest at 6 per cent. He agreed to pay an extra price for the easy terms and the low rate of interest. He did not count on such a snap foreclosure for fifteen notes which had not become due and the advance of the rate of interest from 6 per cent to 9 per cent.
The suit to recover from defendant $5,000 for the use of his land during the summer of 1917 is in keeping with a foreclosure proceeding. A mortgage is a mere lien on property, and does not entitle the mortgagee to possession of the property unless authorized by the express terms of the mortgage. Comp. Laws 1913, §§ 6738, 6740.
The mortgage in question did not give the mortgagee any right to the possession of the land either before or after foreclosure. In manner provided by statute, the mortgage may be foreclosed by adver*617tisement and a sale of the mortgaged premises, and at his own foreclosure sale a mortgagee may fairly and in good faith purchase the premises. § 8083. The sale is made subject to a redemption within one year. § 8085. On paying the purchaser the amount of his purchase, with 9 per cent interest. Laws 1915, chap. 223. The salo does not eonvey title nor devest the title of the mortgagor nor make him the tenant of the mortgagee. The transfer of title is by a deed. §§ 8087, 8106. When a foreclosure is by action the court may appoint a receiver “when it appears that the mortgaged property is in danger of being lost, removed, or materially injured or that the . . . property is probably insufficient to discharge the mortgage debt.” § 7588.
The claim asserted for the use and occupation of the land is based on a statute relating to sales of real property on executions. § 7762. It provides: The purchaser from the time of sale until a redemption is entitled to receive from the tenant in possession the rents of the property sold or the value of the use and occupation thereof. This he is entitled to receive from the tenant in possession and from no other person, and it is from the tenant in possession after an execution sale. Now from the statute it is manifest that the word “purchaser” and all of the section relates to execution sales, and it in no way refers to a sale on foreclosure, and it in no way confers the right to receive rents in any case except from a tenant in possession. The same statute on execution sales provides: “Upon a sale of real property tho purchaser is substituted to and acquires all the right, title, interest and claim of the judgment debtor thereto; and when the estate is . . . a leasehold of two years, . . . the sale is absolute. In all other cases the real property is subject to redemption as provided in this chapter.” On Execution Sales, § 7751. Thus in the chapter on execution sales, when the word “purchaser” is used, it relates to a purchaser at an execution sale. In § 7762, the word “purchaser” must have precisely the same meaning as in § 7751, providing that “upon a sale of real property the purchaser is substituted to and acquires . . . the . . . title ... of the judgment debtor.” The two sections of the statute go together a.nd they are in perfect harmony. If a purchaser at a foreclosure sale is entitled to the rents and profits during the year of redemption then, “upon a foreclosure *618sale of real property, the purchaser is substituted to and acquires the title of the mortgagor.”
Assuredly, it is not so provided in the statute on foreclosures, and, on the contrary, it is provided that a mortgage is a mere lien, and does not entitle the mortgagee to possession. We need not argue to show that the owner of property cannot be deprived of possession of the same unless by force of his own deed or contract, by force of the statute, or by due process of law.
It is true that in early days Justice Corliss wrote an ill-considered decision to the contrary (2 N. D. 431, 51 N. W. 414), and it has been followed in some cases, but there is no reason why this court should not decide the case according to reason and the plain words of the statute. The foreclosure sale did not make the defendant a tenant in possession of his own land. It did not transfer any title to the plaintiff, and, as the sale was not made fairly and in good faith, it should be held void. In any event the judgment should be reversed.