Statement of the Case.

plaintiff, sued himself, M. W. Kales, administrator of the estate of Jonathan M. Bryan, deceased, as defendant, asking for judgment upon the note and foreclosure of the mortgage, . and for a sale of the land to satisfy the judgment. To that suit Vina Bryan was made a party defendant. On the same day a lis pendens was duly filed in the office of the county recorder of the said county. On October 3, 1883, a summons was duly issued out of the said court, and duly served upon M. W. Kales, administrator, the defendant named in the action; and on the same day a summons was duly issued and served upon the said Vina Bryan. M. W. Kales, administrator, as defendant, made answer on the same day, and admitted each and every allegation of the complaint, and consented that a judgment and decree might be entered in accordance with the prayer thereof; and Vina Bryan, answering the complaint, denied any individual liability on her part to the plaintiff, admitted each and every material allegation in the complaint, in so far as the same did not imply a personal liability on her part; disclaimed all right, title and interest in the said property in any way conflicting with the mortgage; and prayed to be dismissed.

Upon a day of the regular term of the said court, October 16, 1883, the said cause came on for trial, and the same having been tried and duly submitted, the court on that date rendered judgment against M. W. Kales, administrator of the estate of Jonathan M. Bryan, deceased, defendant, in favor of M. W. Kales, plaintiff, for the sum of $5330.80, entered a decree to foreclose the said mortgage, and ordered that the said property be sold to satisfy the judgment, and that the defendants be barred and foreclosed of all equity of redemption of, in and to the said property from and after the delivery of the sheriff's deed to the same. On November 10, 1883, an order for the sale of the property was issued out of the court on the judgment and delivered to the sheriff of Maricopa County for execution, and on December 15, 1883, the sheriff, having advertised the land for sale under the judgment for the time prescribed by law, offered the same for sale to the highest bidder, for cash, and sold the same to the said M. W.

Opinion of the Court.

Kales for the sum of $4500, that being the highest price bid, and subsequently executed and delivered to Kales a deed. therefor, dated June 19, 1884.

Afterwards Vina Bryan, the widow of Jonathan M. Bryan, married one R. D. Brown, and thereafter, namely, on June 29, 1887, she conveyed, by quitclaim deed, in the name of Vina Brown, to T. J. Bryan, the plaintiff in the present action, such interest as she then had in the said land.

It further appears by the agreed statement of facts in this case that Kales paid the said amount for the property, and that such amount was the market value of the same; that from the date of sale to the time of the commencement of this action, Kales paid $434.88 in taxes and $3048.37 for improvements upon the property; that M. W. Kales, the plaintiff in the said suit, was the same person as M. W. Kales, administrator, the defendant therein; that at the time of the commencement of the present suit the defendant was in possession of the property; that no part of the property was sold by the said administrator in the course of his administration, and that the note and mortgage executed to Kales were not paid or satisfied in any way, unless by the said sale.

Mr. William A. McKenney, Mr. Webster Street and Mr. B. Goodrich for appellant.

Mr. A. C. Baker, Mr. A. H. Garland and Mr. R. C. Garland for appellee.

MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.

Whether the judgment in the case of Kales v. Kales, Administrator of the estate of Jonathan M. Bryan, was void, because of the alleged fact that the plaintiff, suing as a creditor of the estate to foreclose a mortgage, was the same person who, as defendant, represented the estate; whether the judg ment was open to attack collaterally; and whether Mrs. Vina Brown, who was the widow and sole heir of Jonathan M. Bryan, was estopped from assailing the judgment, by reason

Statement of the Case.

of having appeared and answered in the foreclosure suit, acknowledging the debt and consenting to the sale, are questions which we deem it unnecessary to determine. There was another ground of defence, so conclusive and free from difficulty that we prefer to place upon it our judgment affirming that of the court below.

It is admitted that the defendant below was a mortgagee in possession, with his debt past due and unpaid. The plaintiff was not offering to redeem, and had not tendered payment of the debt, but stood on the bare legal title, subject, if the foreclosure proceeding were void, to the lien of the unpaid mortgage and to the right of the mortgagee to retain possession until his debt was paid. This is the English doctrine, and it prevails generally in the United States. Birch v. Wright, 1 T. R. 378; Simpson v. Ammons, 1 Binney, 175; Hill v. Payson, 3 Mass. 559; Parsons v. Welles, 17 Mass. 419; Brobst v. Brock, 10 Wall. 519. And such, as we learn from the opinion of the Supreme Court of the Territory of Arizona in the present case, is the law of that Territory.

The judgment of the Supreme Court of the Territory of Arizona is accordingly

Affirmed.

BRYAN v. BRASIUS.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF

ARIZONA.

No. 200. Submitted December 19, 1895. - Decided April 13, 1896.

A mortgagor of land cannot recover in ejectment against the mortgagee in possession, after breach of condition, or against persons holding under the mortgagee.

An irregular judicial sale, made at the suit of a mortgagee, even though no bar to the equity of redemption, passes all the mortgagee's rights to the purchaser.

In his lifetime one Jonathan M. Bryan, who was the owner of the 160 acres of land in controversy in this action, being the

Statement of the Case.

N. E. of section 5, T. 1 N., R. 3 E., Gila and Salt River meridian, executed and delivered his promissory note to M. W. Kales, February 23, 1883, for the sum of $2500, payable February 23, 1884, with interest at the rate of one and one half per cent a month. To secure the payment of the note, on the same day he executed and delivered to Kales a mortgage of all the said land. At that time, and also at the time he acquired the said property, Jonathan M. Bryan was a married man, his wife being Vina Bryan. On August 29, 1883, Jonathan M. Bryan died intestate, leaving Vina Bryan his widow and sole heir; and on September 24, 1883, the said M. W. Kales was duly appointed administrator of his estate by the probate court of Maricopa County, Territory of Arizona, wherein the said land was situate, and continued in such office until the administration was closed, December 6, 1884. In the administration of the estate the said property was not distributed.

On September 28, 1883, Kales brought an action in the district court of the Territory of Arizona, county of Maricopa, in which he, M. W. Kales, as plaintiff, sued himself, M. W. Kales, administrator of the estate of Jonathan M. Bryan, deceased, as defendant, and in which he asked for judgment upon the note and foreclosure of the mortgage, and for a sale of the mortgaged premises to satisfy the judgment. A summons was duly issued out of the said court on October 5, 1883, and on the same day was duly served on M. W. Kales, administrator, the defendant named in the action, who, on the day following, made answer, and admitted each and every allegation of the complaint filed, and consented that judgment or decree might be entered in accordance with the prayer thereof.

On the 9th day of October, 1883, being a day of the regular term of the said court, the said cause came on for trial, and the same having been tried and duly submitted, the court, on October 16, 1883, rendered judgment against M. W. Kales, administrator of the estate of Jonathan M. Bryan, deceased, defendant, in favor of M. W. Kales, plaintiff, for the sum of $2670, entered a decree to foreclose the mortgage, and ordered that the property be sold to satisfy the judgment; and on

Statement of the Case.

November 8, 1883, an order for the sale of the premises was issued out of the said court on the judgment, and delivered to the sheriff of Maricopa County for execution.

On December 15, 1883, the sheriff, having advertised the property for sale under the judgment for the time prescribed by law, offered the same for sale to the highest bidder, for cash, and sold the same to the said M. W. Kales for the sum of $2975, that being the highest price bid, and issued to Kales a certificate of sale therefor, which certificate, on June 13, 1884, was sold and assigned by him to one J. T. Sims for the sum of $3500. On June 16, 1884, the sheriff executed and delivered to J. T. Sims, the assignee of the certificate of sale, a deed for the property, and on February 28, 1887, Sims conveyed the property to George T. Brasius.

In the meantime, Vina Bryan married one R. D. Brown, and on June 28, 1887, she conveyed said property, by quitclaim deed, in the name of Vina Brown, to T. J. Bryan.

By the agreed statement of facts upon which the present case was heard in the court below, and in which the matters stated above are to be found mentioned, it further appears that M. W. Kales, the plaintiff in the said suit, was the same person as M. W. Kales, administrator, the defendant therein; that at the time the present cause of action arose the defendants were in possession of the said property; that no part of the property was sold by the administrator of Jonathan M. Bryan's estate in the course of administration; that the said note and mortgage were never paid or satisfied, unless by the sale under the said foreclosure proceedings; that at the said sale made by the sheriff the property sold for its market value; that immediately after the purchase of the property by J. T. Sims, he entered into possession thereof, and that he and those claiming under him were still in possession of the same when the statement of facts in this case was prepared; that Sims and those claiming under him have, since June 16, 1884, paid taxes upon the property, and that after that date he and they made valuable improvements upon the premises, which remain thereon, without any notice of the claim of the plaintiff in this action or his grantor, except such notice as may have been

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