property to the defendant, but will leave the property in the possession of the plaintiff.” 24 Am. & Eng. Ency. of Law, pp. 484, 485.
See, also, Cobbey on Replevin (2d ed.) § 125.
By parity of reasoning, it would seem to follow that where a party institutes an action to recover the possession of certain personal property then in the possession of another, who rebonds and retains the property in his possession, the plaintiff in such action will not be awarded a judgment against the defendant therein for delivery of such property to the plaintiff, where, after the commencement of the action and before the trial thereof, such plaintiff has parted with all title and claim to the property in suit.
There were also other reasons which justified the trial court in directing a verdict in favor of the defendant for a dismissal of the action. It will be noted that before this action was commenced the time in which to make redemption from the foreclosure sale had expired. While the evidence does not show that a sheriff’s deed had been issued, the right of the holder of such certificate to demand and receive such deed had become absolute. State ex rel. Bank v. Herman, 36 N. D. 177, 185, 161 N. W. 1017. And all the rights of the plaintiffs in and to said premises have been terminated. Such rights had been set over to the holder of the sheriff’s certificate of sale. By the provisions of § 7762, C. L. 1913, the purchaser at a foreclosure sale was entitled to receive from a tenant in possession of the property so purchased the rents or the value of the use and occupation thereof. Within the purview of this statute any one occupying and raising crops on the premises, even the owner himself, will be deemed a tenant in possession. See Clifford & Co. v Henry, 4o N. D. 604, 612-614, 169 N. W. 508.
Hence there can be no question but that the purchaser at the foreclosure sale, or his successor in interest or assigns, had a cause of action against. some one for the rents, or the value of the use and occupation. Whether this claim would be more or less than the value of the share of the crop which the plaintiffs claim, we do not know and need not determine. Nor do we need to determine the respective rights of Mackey and those who have acquired the interests of the plaintiffs through the foreclosure proceedings or otherwise. It is sufficient to note that these claims and interests are outstanding. The plaintiffs must recover on the strength of their own title or right of possession, and not on the weakness of their adversary. It seems clear, under the facts here presented,
