
    No. 11,384.
    Stoll v. Colorado Investment & Realty Co.
    Decided November 16, 1925.
    Action in forcible entry and detainer. Judgment for plaintiff.
    
      Affirmed.
    
    
      On Application for Supersedeas.
    
    1. Mortgage — Foreclosure — Parties. One bolding a conveyance from or under tbe mortgagor of mortgaged property wbicb does not appear of record, need not be made a party to an action to foreclose tbe mortgage, and judgment of foreclosure is conclusive against sucb a party.
    
      Error to the District Court of Morgan County, Hon. L. C. Stephenson, Judge.
    
    Mr. John T. Maley, for plaintiff in error.
    Mr. Walter S. Coen, Mr. Omer T. Mallory, Mr. John T. Dugan, for defendant in error.
    
      Department Two.
    
   Mr. Justice Denison

delivered the opinion of the court.

This was an action by the Colorado Investment and Realty Company against Mary A. Stoll in forcible entry and detainer to recover five acres of land upon which was a hotel. The defendant claimed title and the case was thereupon transferred to the district court where judgment was rendered for the plaintiff.

Plaintiff claimed under a mortgage given by defendant’s husband and the foreclosure thereof in a suit to which defendant was not a party. When the mortgage was given the title stood and still stood at the trial in the husband’s name. She claimed full title under an unrecorded contract from him and she claims to have been, at the date of the mortgage and at the date of the foreclosure, in the exclusive, open and notorious possession of the premises and that this is equivalent to record of her title. We do not think that under the evidence her possession was such as to give constructive notice; but, be that as it may, and even if the mortgagee had constructive notice by her possession at the time of the execution of the mortgage, yet the foreclosure is good against her. The code provides that “no person holding a conveyance from or under the mortgagor, or of the property mortgaged, * * * which conveyance * * * does not appear on record * * *, need be made a party to such action, and the judgment therein rendered and .the proceedings therein had shall be as conclusive against the party holding such unrecorded conveyance * * * as if he had been made a party to said action, and shall, in all respects, have the same force and effect.” Code 1921, § 272.

Supersedeas denied and judgment affirmed.

Mr. Chief Justice Allen and Mr. Justice Whitford concur.  