ditions contained in the deed, through which the mortgagor acquired his title. Wis. Rev. Stat., § 3169, applied. Gilchrist v. Foxen, 95 Wis. 428 (70 N. W. Rep. 585). A purchaser at a foreclosure sale, had under a decree foreclosing a mortgage executed by the mortgagor, while the land was in the adverse possession of another who was not made a party to the proceedings to foreclose, acquires no title as against such adverse claimant. Probst v. Bush, 115 Ala.495 (22 So. Rep. 445). A purchaser whose deed and the mortgage and decree under which the sale was made, describes the property generally as all the property owned by the mortgagor, acquires no title as against a purchaser from the mortgagor of specifically described property, and the fact that the mortgagor was a railroad company makes no difference where the property in dispute was not owned for railroad purposes. Wash. Code Proc., $ 500, applied. National Bank of Commerce v. Lock, 17 Wash. 528 (50 Pac. Rep. 478; 61 Am. St. Rep. 923.)

Sec. 642. Right of purchaser at foreclosure sale to possession-Writ of assistance. The right of a purchaser at foreclosure sale to recover possession by summary process, under Mass. Pub. Stat.,ch. 175, § 1, may be exercised by his grantee against a tenant of the mortgagor. Allen v. Chapman, 168 Mass. 442 (47 N. E. Rep. 124). A writ of assistance is proper to place the mortgagee, who has purchased under a foreclosure sale, in possession under his deed. It runs against the mortgagor and all persons who have purchased the fee under him, pendente lite, with notice. Hibernia Sav. & L. Soc. v. Lewis, 117 Cal. 577 (47 Pac. Rep. 602). A purchaser is entitled to a writ of assistance against the mortgagor's widow, who, as administratrix, was a party to the action to foreclose, where she does not claim any rights in the premises independent of the deceased. Finger v. McCaughey, 119 Cal. 59 (51 Pac. Rep. 13). Construing and applying Hill's Wash. Code. Vol. 2, §§ 508, 519, it is held that a purchaser at a foreclosure sale, becomes entitled to the possession of the premises sold from the time of the acceptance of his bid by the sheriff. State v. Northwestern & P. H. Bank, 18 Wash. 118 (50 Pac. Rep. 1023). A purchaser at a foreclosure sale is not entitled to a writ of assistance to place him in posses

sion, as against one who was not a party to the foreclosure suit and who was in possession under claim of right before the commencement of such suit; and the validity of such claimant's title cannot properly be tested or determined on an application for such writ. Ex parte Jenkins, 48 S. C. 325 (26 S. E. Rep. 686).

Sec. 643. Foreclosure by advertisement. Applying S. Dak. Comp. Laws, § 5411, providing that every mortgage of real property containing a power of sale, upon default in the condition of such mortgage, may be foreclosed, it is held that a foreclosure by advertisement may be had of a mortgage which recites, "It is further agreed that this mortgage or trust deed may be foreclosed by action or by advertisement, as provided by chapter 28 of the Code of Civil Procedure of the Compiled Laws of Dakota 1887, and this paragraph shall be deemed as authorizing and constituting a power of sale as provided in this chapter." Male v. Longstaff, 9 S. Dak. 389 (69 N. W. Rep. 577). Where the power of sale omits the essential words "in case of nonpayment" of the debt, a foreclosure by advertisement is invalid, but a purchaser. thereunder acquires the rights of the mortgagee. Lariverre v. Rains, 112 Mich. 276 (70 N. W. Rep. 583). An assignee, for the benefit of creditors, may foreclose by advertisement a mortgage containing a power of sale executed and delivered to his assignor and become a good faith purchaser at such sale, under S. Dak. Comp. Laws, § 5419, providing that "the mortgagee, his assigns or other legal representatives may fairly and in good faith purchase the premises so advertised or any part thereof, at such sale." Thompson v. Browne, 10 S. Dak. 344 (73 N. W. Rep. 194). Where the validity of a foreclosure by advertisement is conceded, and the only question is the right of the mortgagee to deduct sums paid for taxes and insurance, it is held, construing and applying Minn. Gen. Stat. 1894, § 6033, requiring a notice of foreclosure by advertisement to specify "the amount claimed to be due thereon, and taxes, if any, paid by the mortgagee at the date of the notice," that the mortgagee can deduct and retain from the proceeds of sale, the amount paid for taxes before the commencement of the publication of the notice of sale, although

the specific amount so paid is not stated in the notice and sale, but it is stated therein that the premises will be sold to pay principal and interest" and any sums paid for taxes or insurance on the premises;" but he cannot retain money paid for an insurance policy on the morning of the sale, although the insurance was previously ordered, where the insurance is to cover the year allowed for redemption. Hamel v. Corbin, 69 Minn. 223 (72 N. W. Rep. 106). A statute (S. Dak. Comp. Laws, § 5118), providing that "if the mortgaged premises consist of distinct farms, tracts, or lots, they must be sold separately," does not apply to a sale of city lots upon which an expensive building has been erected which extends to some part of each lot and is so planned that each part would be practically useless without the other. Thompson v. Browne, 10 S. Dak. 344 (73 N. W. Rep. 194). An application to vacate a foreclosure sale by advertisement, on account of inadequacy of price or failure to sell in parcels, will not be entertained, no excuse for the delay being shown, where it is made over four months after the expiration of the time allowed for redemption. Northwestern Mortg. Trust Co. v. Bradley, 9 S. Dak. 495 (70 N. W. Rep. 648).

Sec. 644. Power of sale-Sale under. The right to sell under a power of sale contained in a recorded mortgage, is not affected by the loss of the original instrument. Bibb v. Crews, 113 Ala. 617 (21 So. Rep. 841). Mere assignment of a note secured by a mortgage containing a power of sale does not transfer to the assignee the power of sale, and a sale by him under the power amounts merely to an equitable assignment of the notes and mortgage. Hussey v. Hill, 120 N. C. 312 (26 S. E. Rep. 919; 58 Am. St. Rep. 789).

It is not essential to the validity of a sale under a power that the assignee of such power be personally present at the sale. Ray v. Home & Foreign Inv. & A. Co., 98 Ga. 122 (26 S. E. Rep. 56). Where the notice of sale falsely stated that the premises were subject to incumbrances and an out of the way place was designated for the sale, it is voidable at the choice of the mortgagor. Long v. Richards, 170 Mass. 120 (48 N. E. Rep. 1083; 64 Am. St. Rep. 281). In Massachu- . setts it is held that a mortgagee, when there has been no

default or breach of conditions of the mortgage, cannot sell the land mortgaged under the usual power of sale contained in the mortgage, so as to pass a good title even to a bona fide purchaser for value or to any subsequent purchaser from him. In case of such an unauthorized sale by the mortgagee, the mortgagor, if he so elect, can recover full damages from him whether he can or cannot redeem the premises from the purchaser, and payment of the damages operates to confirm the title of the purchaser as against such mortgagor. Allen, Holmes and Knowlton, JJ., dissenting. Rogers v. Barnes, 169 Mass. 179 (47 N. E. Rep. 602; 38 L. R. A. 145). Applying Wis. Rev. Stat., §§ 3528, 3532, 3534, it is held that where a mortgage provided that upon default it should be lawful for "said party of the second part, her heirs, executors, administrators and assigns," to sell the premises at public auction" pursuant to the statute," a sale may be made by an under sheriff upon which the sheriff may issue a certificate of sale, although the notice of foreclosure stated the sale would be by a certain person who was designated as sheriff. In such a case final deed may be properly made by the successor of the sheriff. Morrissey v. Dean, 97 Wis. 302 (72 N. W. Rep. 873). A purchaser of mortgaged premises at a sale under a power of sale in the mortgage, takes the mortgagor's title divested of all incumbrances since the creation of the power. Mutual Loan & Banking Co. v. Haas, 100 Ga. 111 (27 S. E. Rep. 980; 62 Am. St. Rep. 817).

Sec. 645. Sale under power-Purchase by mortgagee. Where a mortgage authorizes him to do so, a mortgagee may purchase at a sale made by him under a power of sale in the mortgage. Mutual Loan & Banking Co. v. Haas, 100 Ga. 111 (27 S. E. Rep. 980; 62 Am. St. Rep. 317). Where a mort. gage with a power of sale is executed to the clerk of a court to secure a fine, the mortgagee cannot purchase at a sale made thereunder, by his successor, and a deed executed by the clerk after he has gone out of office conveys no title. Shew v. Call, 119 N. C. 440 (26 N. E. Rep. 33; 56 Am. St. Rep. 678.)

Sec. 646. Exhausting power of sale-Title under subsequent sale. Where a mortgage is given upon a single

tract of land to secure a debt due and payable as an entirety, and in default of payment a foreclosure is had under the power contained in the mortgage, a sale for less than the amount due exhausts the lien of the mortgage. Loomis v. Clambey, 69 Minn. 469 (72 N. W. Rep. 707; 65 Am. St. Rep. 576). Applying S. Dak. Comp. Laws, § 5418, which prohibits a separate sale, under a power contained in a mortgage, of any more tracts" than shall be necessary to satisfy the amount due on such mortgage at the date of the notice of sale, with interest and the costs and expenses allowed by law," it is held that where the mortgaged land consists of distinct tracts, a sale under the power by the mortgagee of a sufficient number to satisfy the debt, interest and costs, extinguishes the power, and the sale and purchase of additional tracts by the mortgagee does not confer any title upon him or his assignee, as against an absent mortgagor having no actual knowledge of the foreclosure. Kirby v. Howie, 9 S. Dak. 471 (70 N. W. Rep. 640). The court say: "The general rule seems to be that a purchaser under an extinguished power, though for a valuable consideration and without notice, acquires no title by virtue of a sheriff's certificate or a deed based thereon. So when a mortgagor is substantially injured by a failure to observe the statutory requirements as to the exercise of a power of sale, and enough has been realized from tracts previously sold to satisfy the balance due upon the mortgage,any further sale is a nullity, and a deed of conveyance made in pursuance thereof, even in the hands of a purchaser without notice, is invalid, at least to the extent of such unauthorized and prohibited sale. Tied. Real Prop. 364; Wood v. Colvin, 2 Hill (N. Y.) 566 (38 Am. Dec. 598); Baker v. Halligan, 75 Mo. 435; Grover v. Fox, 36 Mich. 461; Redmond v. Packenham, 66 Ill. 434; Temple v. Whittier, 117 Ill. 282 (7 N. E. Rep. 642). Consequently under the statute of this state (Comp. Laws, § 5418), if the mortgaged premises consist of distinct tracts, a sufficient number of which have been sold to satisfy the debt and costs, the power to sell thereunder ceases, and the mortgagee, being at all times charged with the amount remaining unpaid, can acquire no title to the tract thereafter exposed for sale; and his assignee of the certificate of purchase stands in no better position, as against an absent mortgagor, without actual