North American Trust Co. v. Burrow

60 S.W. 950, 68 Ark. 584, 1901 Ark. LEXIS 8

• Court: Supreme Court of Arkansas
• Decided: February 2, 1901
• Status: Published

Opinion

Wood, J.,

(after stating the facts.) The rule is well settled “that a mortgagee is not entitled to demand of the owner of the equity of redemption the rents and profits of the mortgaged premises until he takes actual possession.” Teal v. Walker, 111 U. S. 242; Greer v. Turner, 36 Ark. 29; Freedman’s Saving & Trust Co. v. Shepherd, 127 U. S. 494; Mayo v. Fletcher, 14 Pick. Mass. 525. The purchaser at a sale under the mortgage, when a stranger to the mortgage, could certainly have no greater rights than the mortgagee when' he purchased. The mortgagee, after forfeiture and sale, having purchased, is certainly entitled to possession, and to the rents and profits, after notice to quit and a demand for rents and profits has been made. But even the mortgagee himself is not entitled to any more than this. Much less would a purchaser, not the mortgagee, during the period for redemption be entitled to rents and profits without demand, notice or suit for possession.

The question of the right to possession is not involved. Appellee concedes that to appellant. The .status of the owner of the equity of redemption in possession and during the period allowed for redemption is-that of a tenant by sufferance, who is not required to pay rent. Wood’s Landlord and Tenant, §§ 6, 11; 12 Am. & Eng. Enc. Law (1st Ed.), 668, 669; 1 Taylor, Landlord and Tenant, § 64; Stedman v. Gassett, 18 Vt. 346.

Affirm.