Kellogg v. Illinois Cent. R. Co. , 204 Iowa 368 ( 1927 )

Kellogg was a purchaser at the mortgage foreclosure sale. As 4. MORTGAGES: such purchaser, he took the entire title that foreclosure: the mortgagor had in said premises, as of the title date of the execution of the mortgage. In acquired by McElroy v. Allfree, 131 Iowa 112, it is purchaser. said:

"The purchaser becomes privy in estate with the mortgagor with respect to the title as it existed when the mortgage was executed * * *."

This is the general rule of the authorities. Hokanson v.Gunderson, 54 Minn. 499 (56 N.W. 172); 27 Cyc. 1791, Section e;Bateman v. Kellogg, 59 Cal. App. 464 (211 P. 46); Champion v.Hinkle, 45 N.J. Eq. 162 (16 A. 701); Meier v. Meier, 105 Mo. 411 (16 S.W. 223); Minchew v. Hankins (Tex. Civ. App.), 278 S.W. 306; Gamble v. Horr, 40 Mich. 561; McNutt v. Nuevo Land Co.,167 Cal. 459 (140 P. 6); Allis v. Foley, 126 Minn. 14 (147 N.W. 670). The mortgagor could not, by any arrangement or contract with the railroad company, impair the title of the purchaser at the foreclosure sale as it existed when the mortgage was executed. In other words, the purchaser at the foreclosure sale, whether he be the original mortgagee or a third party, by such purchase and subsequent sheriff's deed takes the title of the mortgagor in and to the premises as of the date of the execution of the mortgage. The mortgagor could not, by release or conveyance, affect the title to the premises as it was at the date of the mortgage, as against such purchaser.

Appellant's petition for rehearing is overruled.