Oliver v. Deffenbaugh

265 S.W. 970, 166 Ark. 118, 1924 Ark. LEXIS 41

• Court: Supreme Court of Arkansas
• Decided: November 3, 1924
• Status: Published

Opinion

Hart, J.,

.(after stating the facts). Under the facts stated, the court erred in instructing the jury that the plaintiffs were entitled to the ungathered crops on the mortgaged premises at the time they were dispossessed. The law is that the mortgagee, having purchased the mortgaged premises at a foreclosure sale, is entitled to the possession of the same and to the rents and profits, after notice to quit and a demand for the rents and profits has been made. A purchaser from the mortgagee during the period of redemption has the same rights as the mortgagee. North American Trust Co. v. Burrow, 68 Ark. 584, and Tallman v. Heuck, 152 Ark. 438.

The record shows that the mortgagee, Mrs. V. C. Irvin, purchased1 the mortgaged premises at the foreclosure sale, and that .the sale was duly confirmed by the court. A deed to the mortgaged premises was also executed to her, which was approved by the court, and possession was awarded her.

Pursuant to this direction of the chancery court, a writ of assistance was issued by the clerk of the court on the 26th day of July, 1922. The writ of assistance was placed in the hands of the sheriff, and notice of its issuance was given to E. E. Deffenbaugh. It is true that the writ was not executed until the 6th day of October, 1922; but the issuance of the writ and notice to Deffenbaugh that it had been placed in the hands of the sheriff for execution was equivalent to a notice to quit and a demand for the rents and profits.

The record shows that Deffenbaugh had notice that the writ had been placed in the hands of the sheriff for execution about the first day of August, 1922. Therefore Mrs. Y. C. Irvin and Oliver, her grantee, were entitled to the rents after this date. At that time the confirmation of the sale had 'been obtained.

In Gailey v. Ricketts, 123 Ark. 18, it was held that the purchaser of land at a commissioner’s sale, in the absence of a reservation of rents or the right to growing crops, acquires, upon confirmation of the sale, a right to the same.

It necessarily follows that the court erred in telling the jury that the plaintiffs were entitled to the ungath-ered crops when they were dispossessed of the land.

The mortgagor had the right to redeem the property sold at the foreclosure sale at any time within a year from the date of the sale. Crawford & Moses’ Digest, § 7411. Of course if he should exercise this right, Deffenbaugh would be entitled to an accounting for the rents and profits received by Mrs. Y. C. Irvin and her grantee during the statutory period of redemption.

It follows that the judgment must be reversed, and the cause will be remanded for a new trial.