Bryan v. Brasius/Opinion of the Court

This case differs from the case of Bryan v. Kales (just decided) 16 Sup. Ct. 802, in the particular that the mortgagee, Kales, is not himself the defendant, but the defendants in possession are his alienees. The question thus presented is precisely the one that was ruled in the case of Brobst v. Brock, 10 Wall. 519, where this court held that a mortgagor of land cannot recover in ejectment against the mortgagee in possession, after breach of the condition, or against persons holding possession under the mortgagee; and also held that an irregular judicial sale made at the suit of a mortgagee, even though no bar to the equity of redemption, passes to the purchaser at such sale all the rights of the mortgagee as such. Gilbert v. Cooley, Walk. (Mich.) 494; Jackson v. Bowen, 7 Cow. 13.

So in Jackson v. Minkler, 10 Johns. 479, it was held that the assignee of a mortgage, in possession of the premises, is protected by the mortgage, though no foreclosure of it was shown, against an action of ejectment by a mortgagor.

The judgment of the court below (Bryan v. Brasius, 31 Pac. 519) was placed on this ground, and it is accordingly affirmed.