Rudolph v. Herman

Citations

• 4 S.D. 283
• 56 N.W. 901
• 1893 S.D. LEXIS 75

Syllabus

<p>1. A purchaser at a mortgage foreclosure sale by advertisement has only such rights as are specially given him by statute. The provision of Section 5159, Comp. Laws, which says: “The purchaser from the time of the sale until a redemption, and a redemptioner from the time of his redemption until another redemption, is entitled to receive from the tenant in possession the rents and profits of the property sold, or the value of the use and occupation thereof,” — has no application to sales made at a mortgage foreclosure either by advertisement or by action. Kellam, J., dissenting.</p> <p>2. Where a statute creates a liability where otherwise none exists, or increases a common-law liability, it will be strictly construed. Courts will not extend or enlarge the liability by construction, nor will they go beyond the clearly expressed provisions of the act. The intention of the legislature is to be gathered from the words of the statute if plain and unambiguous, and courts in construing them will confine themselves to the provisions of the law.</p> <p>3. If the right of possession under the statute remains in and belongs to the mortgagor during the year of redemption, as well as the legal title, . then the rents and profits from the premises during that period muse be his also. Rents and profits of real property are the fruits of possession, otherwise the right of possession which the statute expressly gives to the mortgager would be of little or no value, and a clear provision of the law would become nugatory, and its beneficial intentions towards the mortgagor be entirely defeated.</p> <p>(Syllabus by the Court.</p>