Hill

— The fixtures of the “Quaker City Mill” were removed by the defendants in May, 1870, intermediate the submission of the action of Depew v. Homer and its decision.

In July, 1870, a decree of foreclosure was entered in that case; in August following the mortgaged premises were sold by the sheriff to Murphy, the mortgagee, and in September, 1871, in default of redemption, he received a sheriff’s deed. The fixtures were removed by consent of the mortgagee, but, as the court below found the fact to be, not with the consent of the mortgagors, the plaintiffs in this action. Upon these facts judgment was rendered for the plaintiffs for the value of the fixtures removed, and from this judgment and an order denying their motion for a new trial, the defendants bring this appeal.

1. The ease, though differing in some of its circumstances, is not distinguishable in principle from that of Sands v. Pfeiffer, 10 Cal. 258 , where the opinion was delivered by Mr. Justice Field. In that ease the mortgagee, who had purchased at the mortgage sale and received a sheriff’s deed, recovered the value of fixtures removed from the mortgaged premises intermediate the purchase and the delivery of the…

— I concur in the judgment. The mortgagee was the purchaser at the foreclosure sale, and, as between mortgagor and purchaser at such sale (and those claiming under them), the sheriff’s deed took effect, by relation, as of the date of the mortgage. If this action had been brought against the mortgagee, he would have had a defense, as being then the owner of the property and entitled to its possession; his rights would have been the same as if the fixtures had remained annexed to the freehold. They were removed by the defendant with the consent of the mortgagee, and the former was authorized to defend under the latter’s title.