Collins, J.
The plaintiffs in this action, brought to determine an adverse claim to real estate, were the defendants in Backus v. Burke, 48 Minn. 260" court="Minn." date_filed="1892-02-01" href="https://app.midpage.ai/document/backus-v-burke-7967295?utm_source=webapp" opinion_id="7967295">48 Minn. 260, (51 N W. Rep. 284,) and the present defendants’ claim of title (to part of the land included in the mortgage involved in that action) comes, through several mesne conveyances, from Bierman, who was the purchaser at the mortgage foreclosure sale. The defense set up in the original answer herein was exclusively made to rest on the validity of that sale, and, although an appeal was taken from a judgment entered in favor of these defendants in the court below, which resulted in a reversal, 51 Minn. 181" court="Minn." date_filed="1892-10-29" href="https://app.midpage.ai/document/plummer-v-hatton-7967611?utm_source=webapp" opinion_id="7967611">51 Minn. 181, (53 N. W. Rep. 460,) the cause had really been disposed of by the decision in Backus v. Burke. After the case had been remitted to the trial court, plaintiffs moved for judgment upon the record, while defendants moved for leave to serve an amended answer, and for a new trial upon the ground of newly-discovered evidence. The proposed amendment to the answer consisted in setting up facts which, notwithstanding ithe invalidity of the foreclosure, would protect the defendants as mortgagees in possession of the mortgaged premises, while the matters set forth in the affidavits on which the motion for a new trial on the ground of newly-discovered evidence was based simply went to the support of the new defense. To state it briefly, the defendants undertook, after the cause had been disposed of here against them, to introduce an entirely new defense j and the evidence set forth in their affidavits, designated as newly-discovéred in their motion for a new trial, might tend to sustain the new defense, but would have been irrelevant and inadmissible under the original pleadings, because wholly foreign to the issues. The court below denied plaintiffs’ motion for judgment in their favor, and granted defendants’ motion for leave to amend their answer, and for a new trial, and plaintiffs appeal.
The prominent and principal question to be considered, in our opinion, is the right of the trial court, in the exercise of its proper discretion, to allow the defendants to so amend their answer as *520to raise and try a new issue. If this power existed, and the discretion of the court was not abused in this instance, it would seem (although we do not so decide) to dispose of plaintiffs’ contention that upon the findings of fact originally made, and which were adequate in form, judgment should have been ordered on their motion as demanded in the complaint, and their further contention that a new trial should not have been granted on the ground mentioned in defendants’ motion, nor on the showing made in their affidavits. It would seem to follow almost conclusively that if, at the time the court below granted the defendants’ motion for leave to. set up a new defense, it had the power so to do, and properly exercised it, a new trial upon the new issue resulted as a matter of course. No one will question the assertion that, as the cause stood when the judgment was reversed oh appeal, the effect of the reversal (no other steps being permissible, or taken) was to send it back for the rendition of a proper judgment, because on the facts found the trial court had erred in its conclusion of law. If, however, the statute, 1878 G. S. ch. 66, § 124, which expressly confers authority upon the trial courts to- allow amendments to pleadings “before or after judgment in furtherance of justice * * * by inserting other allegations, material to the case,” is broad enough, and was designed to cover a case like this, then, if the court below acted discreetly, the order appealed from must be sustained. The question was really settled in the affirmative in City of Winona v. Minnesota Ry. Const. Co., 29 Minn. 68" court="Minn." date_filed="1882-01-10" href="https://app.midpage.ai/document/city-of-winona-v-minnesota-railway-construction-co-7964008?utm_source=webapp" opinion_id="7964008">29 Minn. 68, (11 N. W. Rep. 228.) So we only need to consider whether in granting defendants’ motion there was an abuse of discretion. Undoubtedly the amendment to the answer would have been regarded as one quite proper to be made had it been presented before or at the trial in the court below. It was not inconsistent with defendants’ claim already set up that the mortgage was regularly foreclosed, and might have been incorporated into the original answer as an additional defense. Amendments of pleadings have always been allowed with much liberality, in furtherance of justice, and we think no court would have refused the one in question had the application been made prior to the first appeal to this court. We doubt very much if counsel for plaintiffs would have felt it worth while to resist such an application. Nor has the situation been *521much changed by the fact that the attempt to amend was not made until the defendants had been defeated in their first position, or by the further fact that by the allowance of the amendment a new trial of the cause will be had on different issues. As was said in City of Winona v. Minnesota Ry. Const. Co., supra, amendments to pleadings must be allowed much more sparingly, and with greater caution, after trial than before. Evidently it would not do to allow trials to proceed piecemeal. The facts which actuated the court below seem to have been, as appears from the record, that Bierman, an unmarried man, who purchased at the foreclosure-sale in November, 1874, built a log house and resided on the land in 1875. He continued to live there more or less up to 1882. It was not shown that he had a home elsewhere during these years. The land was of no value for agricultural purposes; so that it is-apparent we could not expect any farming operations to be carried on. Bierman did, during the winter months, cut and sell wood while living on the land. From the year 1873 -the taxes have been paid by Bierman, and his successors in interest. None were paid by the mortgagor, nor did he make any attempt to exercise acts of dominion over the land from the day of the execution of the mortgage down to the time he died, several years after Bierman built his house. Nor was it shown that he ever went near the land' for any purpose. It was not necessary, in order that Bierman might become a mortgagee in possession, that the mortgagor should expressly consent that he enter into possession, for consent may be implied. Nor was it essential that the possession should be strictly continuous; nor was it material that possession should have been taken upon the mutual mistaken assumption that by a valid foreclosure the mortgagee had become the owner of the property. Rogers v. Benton, 39 Minn. 39, (38 N. W. Rep. 765,) and cases cited.. Of course, if Bierman became a mortgagee in possession, it was of the entire tract of land attempted to be sold. Treating the affidavits as of value in supporting defendants’ motion for leave to amend their answer, or as in support of a motion for. a new trial on the ground of newly-discovered evidence pertinent to the proposed new issues, we care not which, we regard their contents as sufficient for either purpose. We do not wish to be understood, however, as holding that Bierman may be found to have been in *522possession as a mortgagee upon proof of the bare facts stated in the affidavits. We conclude that the court below properly exer•cised its discretion when it permitted defendants to interpose an ■amended answer, and granted a new trial.
(Opinion published 56 N. W. Rep. 173.)
Order affirmed.
Dickinson, J., took no part in this decision.