
    [No. 3311.
    Decided November 10, 1899.]
    The State of Washington on the Relation of Sasie F. Montgomery, v. The Superior Court of Kittitas County and John B. Davidson, Judge.
    
    EXECUTIONS-SALE OE LANDS-RIGHT OE PURCHASER TO POSSESSION-MORTGAGEE’S BIGHT OE POSSESSION.
    The purchaser of lands at an execution sale, which has been duly confirmed, is entitled to possession of the premises as against a mortgagee of the judgment debtor, who has been placed in possession pending the suit to enforce the lien of the judgment, to which the mortgagee is a party, since a mortgagee has no right to possession of mortgaged premises prior to foreclosure and sale, in the absence of a stipulation in the mortgage granting the: right.
    
      Original Application for Prohibition.
    
    
      Henry J. Snively, for relator.
    
      Graves & Englehart, for respondents.
   The opinion of the court was delivered by

Gordon, C. J.

In February, 1891, John M. Montgomery (then unmarried) mortgaged the premises involved in this litigation to Barnes & McCandless. For the disposition of the present controversy, it may be assumed that that mortgage has not been paid. Subsequent to its execution the mortgagor and Sasie F. Montgomery (relator) intermarried, and are now husband and wife. In Decernher, 1896, tbe husband executed to the relator a warranty deed to the premises in question. On January 4, 1897, in an action then and theretofore pending in the superior court of Kittitas county, in which action John P. Olerf was plaintiff and John M'. Montgomery and Sasie F. Montgomery were defendants, the last mentioned conveyance was adjudged fraudulent, and the land in question was directed to be sold to satisfy the lien of plaintiff’s judgment. Pursuant to that judgment and decree, the premises were, on March 22, 1899, sold to the said John P. Olerf, plaintiff therein, and on May 8, 1899, the sale was duly confirmed. The relator alleges that on January 4, 1897, she purchased from Barnes & McCandless the mortgage hereinbefore mentioned and the note secured thereby, and received from said mortgagee an assignment thereof; that on March 18, 1899, four days prior to the sale iof the premises under the judgment and decree heretofore mentioned, she entered into an agreement with her husband whereby, for a valuable consideration, she was let into possession of the mortgaged property, and in pursuance thereof has continued as a mortgagee in possession. In June, 1899, John P. Clerf, the purchaser at the sale, applied to the superior court for a writ of assistance for the purpose of placing him in possession of the premises. The relator herein, Sasie F. Montgomery, appeared and filed her affidavit resisting the application for the writ, and this affidavit was in turn replied to. Thereafter the superior court, over the objection of the relator, proceeded to fix a time for hearing, without a jury, the questions raised by the respective affidavits, and thereupon the relator applied to this court for a writ of prohibition directed to the superior court and the judge thereof, requiring him to desist from further proceedings on the application for the writ of assistance.

Since this application was made, all of the questions and contentions raised and urged in this proceeding have been determined by this court in the cases of Hagerman v. Heltzel, decided on September 9, 1899 (ante, p. 444), and State ex rel. Hartman v. Superior Court of Thurston County, decided on October 8, 1899 (ante, p. 469). The basis of- relator’s right in the present proceedings is that she is the holder of the unpaid mortgage upon the premises in question, which mortgage lien she asserts (and for present purposes it may be assumed) is paramount to the lien of Olerf’s judgment. But her right to possession is not predicated upon any stipulation contained in the mortgage, and our law does not recognize the right of a mortgagee to possession of mortgaged premises prior to foreclosure and sale. Belator’s agreement with her husband, made on March 18, 1899, was subsequent to the judgment and decree which awarded Clerf a lien and directed a sale. To that proceeding the relator here was, as we have seen, a party. The subsequent agreement between herself and her husband was, in legal contemplation, made with full knowledge of the lien of Olerf’s judgment, and therein is the present case distinguishable from State ex rel. Hartman v. Superior Court, supra. It follows that upon her own showing, conceding everything that she alleges to be true, the relator is not entitled to the writ of prohibition. We are not called upon in this proceeding to determine any question of priority between relator’s mortgage and Olerf’s rights as purchaser under the sale. The remedy of a mortgagee under a valid mortgage is ample, and we decide nothing herein that is to be considered as interfering with relator’s right to foreclose her mortgage, if it is'a valid subsisting one. All that is decided is that her mortgage did not entitle her to possession of the premises, and that the agreement with the mortgagor for possession, made during the pendency of the suit to enforce the lien of Clerf’s judgment, is not enforceable against Clerf.

The -writ is denied.

Dunbar, Keavis, Fullerton and Anders, JJ., concur.  