The bidding in of the property by one who has taken an assignment of a mortgage as collateral security, at his own foreclosure sale, gives him a good title to the property, and transfers the interest of his debtor to the proceeds, although such assignor, because not within the jurisdiction, was not made a party to the proceedings ; • Anderson v. Mes singer, 146 Fed. 929, 77 C. C. A. 179, 7 L. R. A. (N. S.) 1094. Notwithstanding the statute provides that a mortgage of real es tate shall not be deemed a conveyance, what ever its terms, so as to enable the owner of the mortgage to recover possession without a foreclosure, a court of equity may, pending foreclosure, impound the rents and profits to be applied in reduction of the debt, espe cially where the rents and profits were pledged in the mortgage to the payment of the debt, in consideration of the release by the mortgage of other security ; id, Equity has power in a jurisdiction where a mort gage does not convey the title to impound rents and profith of mortgaged property ; Moncrieff v. Hare, 38 Colo. 221, 87 Pac. 1082, 7 L. R. A. (N. S.) 1001. The right of a mortgagee to have a receiver appointed, where there is a stipulation in the mortgage that he shall have a lien upon the rents and Profits as well as upon the land, was recog nized, although it was provided by law that a mortgage of real estate is not a convey ance of any estate whatever ; Hardin v. Hardin, 34 S. C. 77, 12 S. E. 936, 27 Am. St. Rep. 786; such provision was held against public policy in Couper v. Shirley, 75 Fed. 168,'21 C. C. A. 288.
A strict foreclosure is the barring of the equity of redemption' of the mortgagor, after default in payment, when such default con tinues after due notice to redeem ; 4 Kent *180. It is by bill in equity, by which the lands became the absolute property of the mortgagee. This is a common English prac tice and obtains also in certain New England states, with a liberal period, by statute or by practice in equity, for redemption ; 4 Kent *181. But it is common to decree a sale of
the mortgaged premises and apply the pro Ceeds to the payment of the incumbrances in their order of priority. A more common practice, both in England and here, is for the mortgagee, or a trustee appointed for the purpose, to sell the land under a power of sale inserted in the mortgage. This takes the place of a foreclosure, It is the usual practice in the foreclosure of corporation mortgages, except that the sale by the trus tee named in the mortgage is usually made in the course of legal proceedings and under a decree of the court, the fund being dis tributed to the lienholders according to their respective priorities, and the surplus, if any, paid over to the mortgagor.
A mortgagee may proceed to judgment on his bond secured by the mortgage; and such judgment has a lien as of the date of the mortgage; McCall v. Lenox, 9 S. & R. (Pa.) 310; the purchaser at a sale under the judg ment holds the land discharged of the lieu of the mortgage; Berger v. Hiester, 6 Whatt: (Pa.) 210.
The Equity of Redemption. The right to redeem mortgaged real estate may be kept open by the express agreement of the parties or by cireuniStances from which an agreement may be inferred, although it would be fore closed except for such agreement, and so long as the right of redemption remains in existence the mortgagor may recover from the mortgagee, as money had and received, a surplus obtained by the latter from the sale of the mortgaged property ; Dow v. Bradley, 110 Me. 249, 85 Atl. 896, 44 L. R. A. (N. S.) 1041, with note classifying the cases.
An agreement in a mortgage cutting off the right of redemption is void; Bayley v. Bailey, 5 Gray (Mass.) 505; Hazeltine v. Granger, 44 Mich. 503, 7 N. W. 74; Turpie v. Lowe, 114 Ind. 37, 15 N. E. 834. See