44 mnmmn nsronrzn.
i right to hold that possession and collect the rents on the property
until his mortgage is paid. This is the rule at common law, even
where the lien theory of mortgages obtains. Russeltv. Ely, 2 Black,
575; Wttherell v. Wiberg, 4 Sawy. 232; Phggfe v. Riley, 15 Wend. -
, 248; Hubbell v. Moulson, 54 N. Y. 225; Hennesy v. Farrell, 20 Wis.
42; Dutton v. Warschuucr, 21 Cal. 609; Roberts v. Sutherlin, 4 Or.
219.
In this state there is a statutory provision that “unless a mortgage
specincally provide that the mortgagee shall have possession of the
mortgaged premises he shall not be entitled to the same." Themort-
gage in suit did not contain such a provision. `Notwithstanding this
fact, the parties to this mortgage could enter into a parol agreement
that the mortgagee should take possession of. the mortgaged premises,
and could carry out such an agreementby putting the mortgagee in
possession. Parker v. Hubble, 75 Ind. 580. This was in factdone
in this case, and when this parol agreement was so executed by the
surrender of possession on the part of the mortgagor. the contract be-
tween the parties to the mortgage then stood as though it had been
specifically provided in the mortgage that the mortgagee should be
entitled to the possession of the mortgaged premises-
The redemption statute of 1879 was not intended to defeat or
abrogatezrights acquired under such a contract. Its effect was meant
to be limited to sales of property which should be sold independently
of any contract pertaining to its use or possession. Its purpose was
to furnisha rule which should be applicable to sales of real estate,
the dominion over which the judgment debtor or his assigns still
held; It does not contemplate an interference with senior rights or
equities created prior to the attaching ofthe judgment lien that
is to be enforced by the sale. V It relates to a remedy for the
enforcement of judgments, and it. does not and could not inhibit a
contract relation that might curtail that remedy. It is true that this
statute was in force when the agreement in question was made, but,
nofraud being charged, the parties to that agreement had the right
to enter into it,. and the complainant is entitled to be protected in
the rights thus secured nothwithstanding the statute. Edwards v.
Woodbury, 1 McCrary 429; [S. C. 3. Fun. REP. 14.] ·
Whether this proposition would be true if the lien ofthe. judgment
had attached prior to the making of the arrangement between the
mortgagor and the mortgagee, need not be decided. The pleadings-
show that the agreement under which the complainant went, into
possession of the mortgaged premises was made before thejudgment