Bryan v. Kales (162 U.S. 411)/Opinion of the Court

Whether the judgment in the case of Kales v. Kales, Administrator of the Estate of Jonathan M. Bryan, was void, because of the alleged fact that the plaintiff, suing as a creditor of the estate to foreclose a mortgage, was the same person who, as defendant, represented the estate; whether the judgment was open to attack collaterally; and whether Mrs. Vina Brown, who was the widow and sole heir of Jonathan M. Bryan, was estopped from assailing the judgment by reason of having appeared and answered in the foreclosure suit, acknowledging the debt, and consenting to the sale,-are questions which we deem it unnecessary to determine. There was another ground of defense, so conclusive and free from difficulty that we prefer to place upon it our judgment affirming that of the court below.

It is admitted that the defendant below was a mortgagee in possession, with his debt past due and unpaid. The plaintiff was not offering to redeem, and had not tendered payment of the debt, but stood on the bare legal title, subject, if the foreclosure proceedings were void, to the lien of the unpaid mortgage, and to the right of the mortgagee to retain possession until his debt was paid. This is the English doctrine, and it prevails generally in the United States. Birch v. Wright, 1 Term R. 378; Simpson v. Ammons, 1 Bin. 176; Hill v. Payson, 3 Mass. 559; Parsons v. Wells, 17 Mass. 419; Brobst v. Brock, 10 Wall. 519. And such, as we learn from the opinion of the supreme court of the territory of Arizona in the present case, is the law of that territory.

The judgment of the supreme court of the territory of Arizona is accordingly affirmed.