Page:North Dakota Law Review Vol. 2 No. 2 (1925).pdf/3

Rh the equivalent of the value of the use and occupation of the land. Under Section 7762, Compiled Laws 1913, the holder of a sheriff's certificate of sale is entitled to receive from the tenant in possession the rents of the property sold, or the value of the use and occupation thereof during the period of redemption and may maintain an action in conversion against the purchaser of that portion of the crop raised during the year of redemption which the mortgagor and the renter agreed should be delivered as rent. If he seeks to recover a portion of the crop raised during such period, or its value in a conversion action, he must show that the crop was rent of the premises within the meaning of Section 7762. When the sheriff's certificate has been recorded, a third party dealing with the lessee of the mortgagor of premises sold under foreclosure is charged with notice of the foreclosure proceedings, and the rights of such holder of the certificate, under Section 7762

Hanson v. Blum. Plaintiff made a loan which was secured by a mortgage on a threshing outfit. The mortgagors also became indebted to a bank and gave a mortgage on the same threshing outfit. Though plaintiff's debt was not paid, he failed to renew his mortgage at the end of three years from the date of filing, as required by Section 6772, Compiled Laws 1913. Thereafter defendant took a mortgage on the same property covering the debt of the mortgagors to the bank, all of which was incurred within three years after the mortgage to plaintiff was filed, and in addition a further indebtedness incurred subsequent to the three year period. On default, the defendant declared his debt due, seized the property and purchased the same at foreclosure sale. Thereafter plaintiff asserted a right thereto under his mortgage and demanded the property. Upon defendant's refusal to deliver it, this action in replevin was commenced. HELD: Section 6762, Compiled Laws 1913, was supplementary to Section 6758. The purpose of the latter is to give notice of the existence of mortgage liens and of the former to clear the record by raising the presumption of payment where there is no renewal within three years from the date of filing on which those dealing with the mortgagors, without notice to the contrary, may rely. A creditor within the meaning of Section 6762 is one who without notice that the debt secured by an unrenewed chattel mortgage is unpaid subsequently extends credit, or alters his position as to his debtor to his detriment as subsequent encumbrancer in good faith, is a creditor taking security for his debt. His character as an encumbrancer is determined by the notice he has when the credit is extended rather than when the security is taken. The defendant was not a subsequent encumbrancer in good faith insofar as his mortgage secured indebtedness incurred within three years after plaintiff's mortgage was filed, and that he is such encumbrancer only as to indebtedness incurred after the expiration of such three year period for credit extended by him to his detriment prior to the time that he received notice that plaintiff's mortgage was still unpaid.