Page:North Dakota Reports (vol. 2).pdf/457

 Action by Foster R. Clement against F. H. Shipley to recover rent. Judgment for plaintiff on demurrer to the answer. Defendant appeals. Affirmed.

W. A. Scott, for appellant:

After a mortgage sale and before the purchaser is entitled to a deed, the rents belong to the owner of the equity of redemption. Aster v. Turner, 43 Amer. Dec. 766; Cheney v. Woodruff, 45 N. Y.101. The code provisions of this state are identical with California and the statute has been construed in that state in Reynolds v. Lathrop, 7 Cal. 43; Harris v. Reynolds, 31 Cal. 514; Knight v. Truett, 18 Cal. 113; Webster v. Cook, 38 Cal. 425; Walker v. McCusker, 71 Cal. 594. It is fair to presume that our courts will be guided by adjudicated cases upon a statute practically identical. Bank v. Bank, 35 N. W. Rep. 577; Pratt v. Telephone Co., 5 N. W. Rep. 307.

D. A. Lindsay, for respondent:

The defendant was a tenant in possession and obliged to account to the plaintiff for the rent. Harris v. Reynolds, 13 Cal. 515; Walker v. McCusker, 71 Cal. 594. The plaintiff is entitled to recover the rent notwithstanding the defendant has paid it to the mortgagor. Reynolds v. Lathrop, 7 Cal. 43; McDevill v. Sullivan, 8 Cal. 593.

The opinion of the court was delivered by

, C. J. The judgment in favor of the plaintiff was rendered upon demurrer by plaintiff to defendant’s answer, on the ground that the answer did not state a defense. That judgment is here for review. The facts, which under the pleadings are undisputed, fully warranted the judgment rendered by the trial court. The plaintiff at foreclosure sale purchased certain premises. The foreclosure was by advertisement under the statute. At the time of the sale the defendant was in the possession of the premises as lessee of the mortgagor. The rent he agreed to pay was $10 per month, payable at the end of each month. The purchase was made August 20, 1890, and on September 3, 1890, the plaintiff notified defendant thereof, and demanded that