#### Louise C. Bunker, Appellant, v. Davenport & Tipton Telephone Company, Appellee.

EASEMENTS: Creation After Execution of Mortgage — Effect. A telephone company which,, under a contract with the owner of premises, ereets its poles thereon after the execution of a mortgage on the premises, may continue such erections against the title holder under a subsequent foreclosure to which the company was not made a party.

*658*Appeal from Cedw District Court.*— F. L. Anderson, Judge.

April 1, 1924.

Aotion of right in which plaintiff seeks to recover possession of the portion of a city lot occupied and held by defendant telephone company for the maintenance of a large telephone pole, anchor, and cables, and for damages. Plaintiff claims to own the entire lot. At the close of all the evidence, plaintiff’s motion for a directed verdict was overruled. A like motion was filed by defendant, and sustained. Plaintiff *appeals.*—

Affirmed.

*F. J. Casterline & Son*and *C. J. Lynch,*for appellant.

*J. C. France,*for appellee.

Preston, J.

1. The petition was filed October 21, 1921. There is no conflict in the evidence except at one point, which will be referred to later. Appellee contends that there was no conflict at any point. We think there is a conflict as to whether there was a completed agreement between the defendant and the then owner of the lot prior to September 3, 1913, or whether such agreement was after that date. But in our view, this is not controlling. We shall not set out the evidence as to that. On said September 3d, the then owner of the property, Mrs. Rowell, gave a mortgage thereon, which was afterwards foreclosed, and a sheriff’s deed made to the mortgagee. On July 9, 1919, the grantee in the sheriff’s deed conveyed the lot to plaintiff by warranty deed, which contained the following recital:

> “Subject, however, to whatever rights, *if any,*the telephone company operating in Tipton, Iowa, known as the Davenport & Tipton Telephone Co., has, to maintain the anchor now located on said premises.”

This defendant was not a party to the foreclosure. Plaintiff had been in possession of the property for some years as tenant.

Without detailed discussion, we-think appellee’s contention that plaintiff had sufficient notice to put her upon inquiry as to defendant’s rights, whatever they were, must be sustained. The question is, What were defendant’s rights, as against this plain*659tiff! There is no question but that defendant did occupy a part of the lot from some time in 1913. The pole is sixteen to eighteen inches in diameter, with anchor and guy wires from the pole to the anchor embedded on plaintiff’s lot. There is no question as to the Statute of Limitations; it is not pleaded, nor had the time elapsed when this action was brought.

Appellee contends that it made the agreement with the then owner in July or August, *1913;*while appellant contends that it was October, 1913, or later, and after September 3d. Under the evidence, the contract was not completed and money paid until after September 3d. It is shown that there was an agreement before September 3d, and that, relying thereon, defendant filled the lot, as agreed, and placed the pole, anchor, and guy wires, and that Mrs. Rowell directed where they should be placed. Appellee also contends that its right to maintain the pole at said location was reserved by plaintiff’s grantors in the sheriff’s deed before referred to.

Appellee, in at least a part of the argument, as well as appellant, seems to treat the question whether the agreement between defendant and Mrs. Rowell was before or after September 3d, as the turning point in the ease. This might be so, if the defendant had been made a party to the foreclosure proceedings. We understand appellant to concede in argument that, if the agreement was before September 3d, defendant has the superior right. But she contends that the jury could have found, from the conflicting evidence on that point, that the agreement was after the mortgage, and that, this being so, the purchaser at a foreclosure sale receives the title which the mortgagor had at the time of the delivery of the mortgage; that the mortgagor, after the execution of the mortgage, cannot burden the property with any incumbrance, easement, or irrevocable license that will affect the rights of the mortgagee; and that the purchaser at foreclosure sale, upon receiving deed, takes the title of the mortgagor as of the date of the mortgage, and free from any subsequently created liens or burdens thereon. *Jensen v. Showalter,*79 Neb. 544 (113 N. W. 202, 204). The ease has a bearing, but in that case, the Statute, of Limitations was involved. See, also, *Harvison v. Griffin,*32 N. D. 188 (155 N. W. 655, 657). It is there said that, by its purchase at the fore*660closure sale, tbe Case Company acquired tbe same title wbicb tbe mortgagors possessed at tbe time tbe mortgage was executed and delivered, wbicb was a title incumbered by tbe prior lien. In other words, it acquired, through tbe sheriff’s deed, tbe same rights, and no other, that tbe mortgagors possessed at tbe date of tbe mortgage, or wbicb were subsequently acquired by them, which was- tbe equity subject to tbe prior liens. See, also, 27 Cyc. 1488, 1491, 1723; 19 Ruling Case Law 625. It may be true that the mortgagor could not, after tbe execution and delivery of tbe mortgage, again incumber it by liens or easements, to tbe prejudice of tbe mortgagee. But Mrs. Rowell, tbe then owner of tbe lot, bad a right to make tbe contract with defendant even though she bad previously given a mortgage upon tbe property. As said, tbe contract would be junior to tbe mortgage; but that would not affect its validity in any other way. The mortgagee could establish bis priority under tbe contract by a foreclosure. Since tbe defendant was not made a party to tbe foreclosure, it was not affected by the foreclosure, and its rights continue as they were before. If tbe telephone company bad been made a party defendant to tbe foreclosure, it would have had a right to litigate tbe question of priority. Tbe substantial right involved in this case is tbe right of easement and of possession under tbe easement. But it is not now seeking an affirmative remedy. It is on tbe defensive, and' is simply maintaining tbe exercise of its easement and tbe possession thereof wbicb it has had continuously since it acquired tbe same.

2. Perhaps it should be said that appellee contends that the evidence shows without dispute that the pole and anchor in question were in place on tbe premises prior to tbe execution of tbe mortgage, and that tbe oral agreement by Mrs. Rowell gave to defendant tbe right to maintain tbe pole and anchor, and acceptance by tbe defendant of tbe proposition and tbe location of the pole is a sufficient basis for tbe defendant’s right to maintain tbe same. The cases cited in support of this proposition are *Goulding v. Shonquist,*159 Iowa 647; *Hamilton v. Wright,*30 Iowa 480. But in these cases, tbe question of tbe Statute of Limitations was involved, and whether an oral agreement carried out shows a sufficient basis for the Statute of Limitations. But we have seen that this is not tbe question here.

*6613. It is further contended by appellee that no damages were shown. But one witness testified on the subject, and, when asked as to his knowledge as to rental values, he did not answer the question. It is doubtful whether there was a sufficient foundation laid. That was only one of the questions involved.

In view of our holding in Paragraph 1 of the opinion, it would seem to be unnecessary to discuss this question. The judgment *is*— Affirmed.

Arthur, C. J., Evans and Faville, JJ., concur.