United States Supreme Court Cases & Opinions

U.S. Supreme Court

Fort v. Roush, 104 U.S. 142 (1881)

Fort v. Roush

104 U.S. 142

APPEAL FROM THE SUPREME COURT

OF THE TERRITORY OF MONTANA

Syllabus

1. At a sale of mortgaged lands in Montana Territory, pursuant to a decree of foreclosure in a proceeding wherein A. was complainant, he became the purchaser of a part of them; but on account of his fraudulent conduct, the sale to him was set aside. B., the mortgagor, now seeks to charge him with the value of the use and occupation of such part while it was in his possession under his purchase, and with damages for waste. Held, 1. that the satisfaction of the decree caused by the sale was vacated when that sale was set aside; 2. that a judgment should be rendered against A. for only so much of the sum found to be due for such value and damages as exceeds the amount necessary to satisfy the decree.

2. Quaere, if the sum so found is insufficient to satisfy the decree, will A., in order to secure an execution against B., be compelled to proceed under sec. 286 of the Revised Statutes of the territory for the revival of the decree.