This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
181, 65 So. 364; Cassidy v. Cook, 99 111. 385; Dearnaley v. Chase, 136 Mass. 288; Kelsay v. Farmers & Traders' Bank, 166 Mo. 157, 65 S. W. 1007; Shears v. Traders Bldg. Ass'n, 58 W. Va. 665, 52 S. E. 860.
73. Kennedy v. Dunn, 58 Cal. 339; Winbigler v. Sherman, 175 Cal. 270, 165 Pac. 943; Lathrop v. Tracy, 24 Colo. 382, 65 Am. St. Rep. 229, 51 Pac. 486; Laclede Bank v. Keeler, 109 111. 385; Stevenson v. Dana, 166 Mass. 163, 44 N. E. 128; House v. Clark, - (Mo.) - , 187 S. W. 57; Reynolds v. Kroff, 144 Mo. 433, 46 S. W. 424; Monroe v. Fuchtler, 121 N. C. 101, 28 S. E. 63; Babcock v. Wells, 25 R. I. 23, 105 Am. St. Rep. 848, 54 Atl. 599; Robinson v. Amateur Ass'n, 14 S. C. 148;
Lallance v. Fisher, 29 W. Va. 512, 2 S. E. 775; Clark v. Eaton, 100 U. S. 149, 25 L. Ed. 573.
74. Kerfoot v. Billings, 160 111. 563, 43 N. E. 804; Chilton v. Brooks, 69 Md. 584, 16 Atl. 273; Holdsworth v. Shannon, 113 Mo. 508, 35 Am. St. Rep. 719, 21 S. W. 85; Nugent v. Nugent, 54 Mich. 557, 20 N. W. 584; Stacy v. Smith, 9 S. D. 137, 68 N. W. 198; Fenton v. Bell, - (Tenn. Ch.) - , 53 S. W. 984; Rohrer v. Strickland, 116 Va. 755, 82 S. E. 711.
75. Lang v. Stansel, 106 Ala. 389, 17 So. 519; Fogarty v. Sawyer, 17 Cal. 589; Heath v. Hall, 60 111. 344; McNeill v. Lee, 79 Miss. 455, 30 So. 821; Hunter v. Wooldert, 55 Tex. 433.
76. See ante, this section, note 93.
In one state it has been decided that the conveyance to the purchaser must be in the name of the mortgagor and not of the mortgagee,78 a view which evidently assumes that the mortgagee has a mere power of agency.79 Occasionally the mortgage instrument provides that the conveyance to the purchaser at the sale under the power shall be executed in the name of the mortgagor, or, in other words, that the mortgagee shall execute it as attorney of the mortgagor.80 It has been held that, in spite of such a provision, a conveyance in the name of the mortgagee passes the equitable title.81 In at least one state effect has been given to a provision in the mortgage instrument authorizing the auctioneer who actually makes the sale to execute the conveyance as attorney for the mortgagor and in the latter's name.82 It is to be remarked however that, in so far as the legal title is in the mortgagee, a conveyance in the name of the mortgagor alone would appear to be insufficient to vest the legal title in the purchaser, and why in any case the conveyance should be required to be in the name of the mortgagor is somewhat difficult to understand, unless it is intended that, in the particular case, the power of sale shall operate as a mere power of agency, subject to revocation by the mortgagor's death.83 In some states the statute provides that the sheriff may exercise the power of sale and execute the conveyance to the purchaser.84 The power of the sheriff in such case is a "statutory power."85
77. See Tripp v. Ide, 3 R. I. 51; Sanders v. Cassady, 86 Ala. 246, 5 So. 503.
78. Johnson v. Johnson, 27 S. C. 309, 13 Am. St. Rep. 636, 3 S. E. 606; Dendy v. Waite, 36 S. C. 569, 15 S. E. 712.
79. Ante, this section, note 93g.
80. Cranston v. Crane, 97 Mass.
459, 93 Am. Dec. 106; Speer v. Hadduck, 31 111. 439.
81. Gibbons v. Hoag, 95 111. 45; Moseley v. Rambo, 106 Ga. 597, 32 S. E. 638.
82. Sanders v. Cassady, 86 Ala. 246, 5 So. 503; Gamble v. Caldwell, 98 Ala. 577, 12 So. 424.
The cases are generally to the effect that the purchaser under the power of sale acquires the title which the mortgagor had at the time of making the mortgage, unaffected by any subsequent transfer by him or lien subsequently created.86 This is necessarily the case on the theory that the mortgagor transfers to the mortgagee the legal title with a power to dispose thereof free from the equity of the mortgagor, as it is on the theory that the mortgagee has a power of appointment in favor of the purchaser at the sale. Even regarding the power as a power of agency only, it seems that one claiming under the power would be protected as against such subsequent transfer or lien, as he would against a revocation in express terms.
If the person exercising the power has, as mortgagee or trustee, the legal title to the land, his conveyance to the purchaser at the sale will, although the sale is invalid, transfer such legal title.87 And without invalid sale to stand in the position of the mortgage creditor who made the sale, the courts do not always clearly indicate whether he does so as having paid the purchase money, that is, on the theory of subrogation, or as having acquired such right by the conveyance made pursuant to the sale.
83. Ante, this section, notes 35-42.
84. See Wilson v. Russell, 4 Dak. 376, 31 N. W. 645; Morris-sey v. Dean, 97 Wis. 302, 72 N. W. 873.
85. Ante, Sec. 312.
86. Powers v. Andrews, 84 Ala. 289, 4 So. 263; Aiken v. Bridge-ford, 84 Ala. 295, 4 So. 266; Mutual Loan & Banking Co. v. Haas, 100 Ga. III, 62 Am. St. Rep. 317, 27 S. E. 980; Hall v. Bliss. 118 Mass. 554, 19 Am. Rep. 476; Jacoby v. Crowe, 36 Minn. 93, 30 N. W. 441; Sims v. Field, 66 Mo. III; Plum v. Studebaker Bros. Mfg. Co., 89 Mo. 162, 1 S. W. 217;
Decker v. Boice, 19 Hun, 152, 83 N. Y. 215; Nichols v. Tingstad, 10 N. D. 172 (statute); Bancroft v. Ashhurst, 2 Grant's Cas. (Pa.) 520; Woonsocket Sav. Institution v. American Worsted Co., 13 R. I. 255; Bull's Petition, 15 R. I. 534, 10 Atl. 484; Fieval v. Zuber, 67 Tex. 275, 3 S. W. 273; Hampshire v. Greeves, 104 Tex. 620, 143 S. W. 147. If the statute requires a notice of the sale to be given to one holding a subsequent lien, his lien is not divested if the notice is not given. Root v. Wheeler, 12 Abb. Pr. (N. Y.) 294. 87. Robinson v. Cahalan, 91 Ala. 479, 8 So. 415; Tew v. Henreference to whether the person exercising the power has or has not the legal title, the purchaser will, on paying the amount of his bid, be subrogated to the rights of the mortgage creditor, to the extent of his payment, that is, he will be in the position of an equitable assignee of the debt with its incidental lien.88 Moreover, without reference to the legal title to the land or to the doctrine of subrogation, the purchaser may, by some cases,89 be regarded as in the position of an assignee of the mortgage, on the theory that the conveyance to him operates, under the circumstances, as an assignment of the debt and mortgage. If the person undertaking to make the sale is neither the creditor nor the holder of the legal title to the land, it appears that the mere conveyance by him, apart from the purchaser's payment therefor, can have no effect as substituting the latter in the position of the mortgagee.90 In asserting the right of a purchaser at an derson, 116 Ala. 545, 3 So. 128; Koester v. Burke, 81 111. 436; Dearnaley v. Chase, 136 Mass. 288; Holmes v. Turners' Falls Co., 142 Mass. 590, 8 N. E. 646; Springfield Engine & Thresher Co. v. Donovan, 120 Mo. 423, 25 S. W. 536; Schanewerk v. Hoberecht, 117 Mo. 22, 38 Am. St. Rep. 631, 22 S. W. 949; Lunsford v. Speaks, 112 N. C. 608, 17 S. E. 430; Crafts v. Daugherty, 69 Tex. 477, 6 S. W. 850. Taylor v. King, 6 Munf. (Va.) 358, 8 Am. Dec. 746; Sulphur Mines Co. of Virginia v. Thompson's Heirs, 93 Va. 293, 25 S. E. 232. Contra, Henderson v. Galloway, 8 Humph. (Tenn.) G92; Enochs v. Miller, 60 Miss. 19.