enters into the possession under such sale, his re- Messrs. Moreland & Masters, for relation to the mortgaged premises is that of a spondents: mortgagee in possession. 8. Under 326, Hill's Code, a mortgagee is precluded from recovering possession of the mortgaged premises after forfeiture by action; but if he can obtain possession of such premises in any lawful or peaceable mode, that is, without force, he may retain possession of such premises, as against the mortgagor or any person claiming under him subsequent to the mortgage, until his mortgage debt is paid. 4. A mortgagee in possession is not to be treated as a mere stranger would be who went upon the land of another and placed sent. But, on the contrary, he may lawfully take down or carry away buildings erected by him on the land mortgaged, the materials of which were his own, and not so connected with the soil that they cannot be removed without prejudice to it. 5. Where the right to remove a chattel from another's land exists, and the party entitled to remove is in possession of the premises, he may exercise the right of removal while so in possession, and a resort to equity is unnec improvements thereon without the owner's con Defendants had a right to remove the house. Taylor v. Townsend, 8 Mass. 411; Waters v. Reuber, 16 Neb. 99, 49 Am. Rep. 710; Kibbe v. Campbell, 34 La. Ann. 1163; Little v. Willford, 31 Minn. 173; McKelway v. Armour, 10 N. J. Eq. 115, 64 Am. Dec. 445; Tyler v. Decker, 10 Cal. 435; 1 Hillard, Real Prop. p. 8; Wickliffe v. Clay, 1 Dana, 591. Defendants could recover in equity the value of the improvements under the circumstances of this case. See Bright v. Boyd, 1 Story, 478, 2 Story, 607; Taylor v. Cozart, 4 Humph. 433, 40 Am. Dec. 655; Scott v. Dunn, 1 Dev. & B. Eq. 425, 30 Am. Dec. 177, note; French v. Grenet, 57 Tex. 273; Hawkins v. Brown, 80 Ky. 186; Thomas v. Malcom, 39 Ga. 328, 99 Am. Dec. 459; McKelway v. Armour, 10 N. J. Eq. 118; Union Hall Asso. v. Morrison, 39 Md. 281; Hatcher v. Briggs, 6 Or. 50. Having a good and complete defense in eq uity to plaintiff's claim, defendants may avail themselves of the same in this action. Onson v. Cown, 22 Wis. 329; Estrada v. Murphy, 19 Cal. 250; Lestrade v. Barth, 19 Cal. 672; Pitcher v. Hennessey, 48 N. Y. 423; New York Ice Co. v. Northwestern Ins. Co. 21 How. Pr. 296; Phillips v. Gorham, 17 N. Y. 270; Bartlett v. Judd, 21 N. Y. 200; Lattin v. McCarty, 41 N.Y. 107; Hoppough v. Struble, 60 N. Y. 430. Strahan, J., delivered the opinion of the court: This cause was tried by the court below with ser v. Rice, 28 Beav. 68; Bates v. Johnson, Johns. | Hemphill v. Ross, 66 N. C. 477; Ellis v. Hussey, 68 (Eng) 304. But this rule of "tacking" has been rejected by the courts of this country as being impossible under our registry system. 3 Pom. Eq. Jur. 231. The American doctrine; modification of the English doctrine, legal and equitable combined. N. C. 501; State v. Ragland, 75 N. C. 12; Harkrader v. Leiby, 4 Ohio St. 602; Allen v. Everly, 24 Ohio St. 97; Rands v. Kendall, 15 Ohio, 671; Youngman v. Elmira & W. R. Co. 65 Pa. 278; Brobst v. Brock, 77 U. S. 10 Wall. 519 (19 L. ed. 1002); Tryon v. Munson, 77 Pa. 250; Conard v. Atlantic Ins. Co. 26 U. S. 1 Pet. 441 (7 L. ed. 213); Carpenter v. Carpenter, 6 R. I. 542; Waterman v. Matteson, 4 R. I. 539; Henshaw v. Wells, 9 Humph. 568; Vance v. Johnson, 10 Humph. 214; Faulkner v. Brockenbrough, 4 Rand. 245. Mortgagee entitled to possession. As against the mortgagor, the mortgagee is entitled to possession at once, unless the mortgage itself shows a different intent. Knox v. Easton, 38 Ala. 345; Welsh v. Phillips, 54 Ala. 309; Doe v. McLoskey, 1 Ala. 708; Grandin v. Hurt, 80 Ala. 116; Blaney v. Bearce, 2 Me. 132. The same rule applies in Illinois, Maryland, Massachusetts, New Hampshire, North Carolina, Pennsylvania, Tennessee and Virginia. Even in those States which regard the mortgage as in any sense conveying a legal estate many incidents of such title are abandoned. The mortgagee has the legal title, as between himself and the mortgagor, only so far as necessary to preserve the mortgage as a valid security, and the mortgagor as against all other persons is regarded as retaining the legal estate. Kannady v. McCarron, 18 Ark. 166; Terry v. Rosell, 32 Ark. 478; Delahay v. Clement, 4 Ill. 201; Vansant v. Allmon, 23 Ill. 30; Carroll v. Ballance, 26 III. 9; Nelson v. Pinegar, 30 Ill. 473; Jackson v. Warren, 32 Ill. 331; Pollock v. Maison, 41 Ill. 516; Harper v. Ely, 70 Ill. 581; Clark v. Reyburn, 1 Kan. 281; Redman v. Sanders, 2 Dana, 68; Stewart v. Barrow, 7 Bush, 368: Woolley v. Holt, 14 Bush, 788; Blaney v. Bearce, 2 Me. 132; Wilkins v. French, 20 Me. 111; Stratton v. Cole, 3 New Eng. Rep. 388, 78 Me. 553; Jones v. Smith, 4 New Eng. Rep. 689, 79 Me. 446; Brown v. Stewart, 1 Md. Ch. 87; Mc-Mo. 229; Kennett v. Plummer, 28 Mo. 142; Cockrill Kim v. Mason, 3 Md. Ch. 186; Leighton v. Preston, 9 Gill, 201; Evans v. Merriken, 8 Gill & J. 47; Jamieson v. Bruce, 6 Gill & J. 72; Sumwalt v. Tucker, 34 Md. 89; Timms v. Shannon, 19 Md. 296; Annapolis & E. R. Co. v. Gantt, 39 Md. 115; Barnard v. Eaton, 2 Cush. 304; Brookover v. Hurst, 1 Met. (Ky.) 665; Ewer v. Hobbs, 5 Met. 3; Howard v. Robinson, 5 Cush. 123; Brown v. Cram, 1 N. H. 169; McMurphy v. Minot, 4 N. H. 251; Southerin v. Mendum, 5 N. H. 420; Glass v. Ellison, 9 N. H. 69; Hobart v. Sanborn, 13 N. H. 226; Tripe v. Marcy, 39 N. H. 439; That mortgagee is entitled to possession after default, see Harmon v. Short, 8 Smedes & M. 433; Hill v. Robertson, 24 Miss. 368; Walcop v. McKinney, 10 v. Bane, 13 West. Rep. 656, 94 Mo. 444; Sutton v. Mason, 38 Mo. 120; Woods v. Hilderbrand, 46 Mo. 284; Johnson v. Houston, 47 Mo. 227; Reddick v. Gressman, 49 Mo. 389; Sanderson v. Price, 21 N. J. L. 646, note: Shields v. Lozear, 34 N. J. L. 496. In Vermont, upon default, the mortgagee is entitled to possession, and may enter, or may immediately bring ejectment. Lull v. Matthews, 19 Vt. 322; Hagar v. Brainerd, 44 Vt. 294. After default the mortgagee's legal estate is absolute, and the mortgagor's only interest is equi out the intervention of a jury, and the only questions of law we are required to consider arise upon the findings, which are as follows: "(1) That A. C. McDonald, named in the complaint, died intestate on the 21st day of September, 1878, seised and possessed at the time of his death of the real property mentioned in the complaint, and described as lots one (1) and two (2) in block 120, Stephen's Addition to East Portland, Multnomah County, Or. (2) That said A. C. McDonald and his wife, on the 23d day of March, 1878, to secure the payment of part of the purchase price of the aforesaid real property for which said A. C. McDonald had given his promissory note, executed and delivered to B. Boeschen, their vendor, a mortgage on said real property, which debt and mortgage were not paid at the date of the death of said A. C. McDonald. (3) That on the 25th day of August, 1879, said B. Boeschen commenced a suit in this court, in the equity department thereof, against the widow and heirs of said A. C. McDonald, deceased, to foreclose said mortgage, though no administration of the estate of said deceased had been had, nor any administrator appointed for said estate, and said mortgage had not been nor has it yet been recorded: that a supposed service of summons in said suit was made on the defendants therein, by publication, as against nonresidents, and a decree of foreclosure regular in form was made and rendered by this court in said suit on the 15th day of October, 1879. "(4) That pursuant to the decree of fore table. Paulling v. Barrow, 32 Ala. 9; Barker v. Bell, 37 Ala. 354; Edwards v. Farmers F. Ins. Co. 21 Wend. 467; Jackson v. Pierce, 10 Johns. 414; Smith v. Shuler, 12 Serg. & R. 240; Simpson v. Ammons, 1 Binn. 175. In Massachusetts his legal estate is ordinarily made absolute by a strict foreclosure rather than by a decree for a judicial sale. Bradley v. Fuller, 23 Pick. 1: Hapgood v. Blood, 11 Gray, 400; Sparhawk v. Bagg, 16 Gray, 583; Steel v. Steel, 4 Allen, 417; Silloway v. Brown, 12 Allen, 30; Norcross v. Norcross, 105 Mass. 265. A strict foreclosure proceeds upon the theory that the mortgagee or purchaser has acquired the legal title and obtained possession of the estate, but that the right and equity of redemption have not been cut off or barred. Jefferson v. Coleman, 9 West. Rep. 73, 110 Ind. 515. In such case, the legal title of the mortgagor having been acquired, the remedy by strict foreclosure is proper to cut off the right and equity of junior incumbrancers to redeem. Ibid. Title of mortgagor. Until the mortgagee takes possession or files a bill to foreclose and for a receiver, the mortgagor is owner as to all the world, and is entitled to the rents and profits. American Bridge Co. v. Heidelbach, 94 U. S. 800 (24 L. ed. 144). As against the mortgagee and those holding un der him, the estate of the mortgagor is purely equitable; but as against all others, it is to all intents and purposes the true and legal ownership with all its incidents and qualities. Middletown Sav. Bank v. Bates, 11 Conn. 519; Cooch v. Gerry, 3 Harr. (Del.) 280; Harper v. Ely, 70 Ill. 581; Georges Creek C. & 1 Co. v. Detmold, 1 Md, 225. So he may recover possession of the land by an closure in said suit the lands in said mortgage described, being the same lots one and two, in block 120, in Stephen's Addition to East Portland, in this county, which are mentioned in the complaint herein, were sold at sheriff's sale on the 22d day of November, 1879, and were bid off by said B. Boeschen; and, said sale having been duly approved by this court, a deed for said lots was in due form made by the sheriff to said Boeschen, which purported to convey to said Boeschen all the right, title, estate and interest which said A. C. McDonald had in said lots at the time of his death, which deed was duly recorded in the records of deeds for this county. "(5) That said lots passed by a regular chain of conveyances, as alleged in the answer, from said B. Boeschen to the defendant, Martin L. Cooper's intestate, the said George Cooper, deceased; the several purchasers under said Boeschen down to George Cooper entering into possession of said lots, and exercising acts of ownership over the same. "(6) That said George Cooper's immediate vendors were in actual possession of said lots, and said George Cooper took the advice of counsel concerning the title to said lots, and procured an abstract of the title thereof to be inade, and the certificate of reputable attorneys of this court, declaring the title of the Forbes, the immediate vendors of said George Cooper, in and to said lots to be good and in fee simple; and said George Cooper thereupon purchased said lots, and paid the full value thereof in cash, and took a deed therefor; and went into the actual possession of the same on or about action at law. Ellison v. Daniels, 11 N. H. 274; Parish v. Gilmanton, 11 N. H. 293; Great Falls Co. v. Worster, 15 N. H. 412; Whittemore v. Gibbs, 24 N. H. 484. Or he may maintain a legal action for injuries done to the estate by a third person. Annapolis & E. R. Co. v. Gantt, 39 Md. 115; Wilson v. Hooper, 13 Vt. 653; Hooper v. Wilson, 12 Vt. 695; Walker v. King, 44 Vt. 601. After default the mortgagee may pursue any or all remedies, legal or equitable, which he may have at the same time. Fitzgerald v. Beebe, 7 Ark. 310; Gilchrist v. Patterson, 18 Ark. 575; Reynolds v. New Orleans Canal & Bkg. Co. 30 Ark. 520. He may obtain possession by ejectment. Rock well v. Bradley, 2 Conn. 1; Beach v. Clark, 6 Conn. 354; Chamberlain v. Thompson, 10 Conn. 243; Middletown Sav. Bank v. Bates, 11 Conn. 519; Newbold v. Newbold, 1 Del. Ch. 310; Karnes v. Lloyd, 52 Ill. 113; Erickson v. Rafferty, 79 Ill. 209; Brown v. Stewart, 1 Md. Ch. 87; Wilhelm v. Lee, 2 Md. Ch. 322; Buckley v. Daley, 45 Miss. 338; Carpenter v. Bowen, 42 Miss. 28; Buck v. Payne, 52 Miss. 271. Abandonment of the legal theory. In some States, partly through the operation of statutes, and partly through the adoption of equitable doctrines by the law courts, the equitable theory that a mortgage is a mere security for the debt, and conveys no title to or estate in the mortgaged premises, is adopted. McMillan v. Richards, 9 Cal. 365; Nagle v. Macy, 9 Cal. 426; Haffley v. Maier, 13 Cal. 13; Goodenow v. Ewer, 16 Cal. 461; Boggs v. Fowler, 16 Cal. 559; Fogarty v. Sawyer, 17 Cal. 589; Lord v. Morris, 18 Cal. 487; Dutton v. Warchauer, 21 Cal. 609; Kid v. Teeple, 22 Cal. 255; Skinner v. Buck, 29 Cal. 253; Bloodworth v. Lake, 33 Cal. 255; Jackson v. Lodge, 36 Cal. 28; Mack v. Wetzlaer, 39 Cal. 247: the 17th day of March, 1885, in good faith, and | Martin L. Cooper's intestate, being still in posfully believing that he had a good title thereto, and wholly ignorant of any adverse title thereto. "(7) That while said George Cooper was in possession of said lots, to wit, in the year 1886, he built upon said lots the dwelling-house described in the complaint, with material and funds wholly his own, and in good faith, without notice of any adverse title, and verily believing that he was the owner in fee of said lots, and of the whole thereof. "(8) That on June 25, 1887, an action was begun in the Circuit Court of the United States for the District of Oregon, against said George Cooper by Angus McDonald, heir-at-law of said A. C. McDonald, in which said action said plaintiff, Angus McDonald, claimed to be the owner in fee of said lots herein before mentioned, and demanded possession of the same; and said United States Circuit Court having jurisdiction did in said action, on the 28th day of November, 1887, adjudge that said Angus McDonald was owner in fee of said lots, and in possession thereof, and did in substance and effect adjudge that said George Cooper had no title to said lots, and that the decree of this court in the herein before described suit of Boeschen v. McDonald, and the sheriff's deed aforesaid to said Boeschen, were invalid and of no effect. "(9) That while said action in said United States circuit court was pending, and two days before said judgment therein had been rendered, to wit, on the 26th day of November, 1887, the said George Cooper, the defendant, session of said lots, caused said dwelling erected by him as aforesaid on said lots to be removed therefrom, and had the same on the said 26th day of November, 1887, on the street near said lots, and afterwards removed the same, and placed it upon another lot belonging to said George Cooper, in the same block, and that in and by said removal of said house from said lots no injury was done to the soil of said lots, nor was there any injury to the inheritance, and said George Cooper removed nothing from said lots except what he had himself and with his own means placed thereon. '(10) That the value of said houses at the time of removal was $700. "(11) That said defendant W. O. Allen did not remove, nor aid or assist or advise or encourage any other person to remove, said house; that said Martin L. Cooper, defendant, did employ men to remove said house, and did direct them in regard to the same; but that said Martin L. Cooper, in all that he did in and about the removal of said house, was only the agent for, and acted only for and in behalf of, said George Cooper, his intestate." As conclusions of law the court finds, from the foregoing facts: (1) That the plaintiff is not entitled to recover from any of the defendants any sum whatever for said house, or the removal of the same. (2) That the defendants are entitled to judgment that they go without day, and recover their costs and disbursements from the plaintiff. E. D. Shattuck, Judge." Carpentier v. Brenham, 40 Cal. 221; Harp v. Calahan,, ment of a debt is regarded as a mortgage, tle legal 46 Cal. 222; Frink v. Leroy, 49 Cal. 314; Drake v. title remaining in the grantor. Kyger v. Ryley, 2 Root, 2 Colo. 685. Neb. 20; Webb v. Hoselton, 4 Neb. 308; Walker v. It is held otherwise under the Statute of Florida. Rights of mortgagee in possession. A mortgagee who obtains possession peaceably under this.equitable theory will not be dispossessed until the debt is paid. Eyster v. Gaff, 2 Colo. 228; Packer v. Rochester & S. R. Co. 17 N. Y. 283; Hubbell v. Moulson, 53 N. Y. 225; Mickles v. Townsend, 18 N. Y. 575; White v. Rittenmyer, 30 Iowa, 268; Roberts v. Sutherlin, 4 Or. 219; Gillett v. Eaton, 6 Wis. 30; Tallman v. Ely, 6 Wis. 244; Fladland v. Delaplaine, 19 Wis. 459; Hennesy v. Farrell, 20 Wis. 43; Avery v. Judd, 21 Wis. 263; Brinkman v. Jones, 44 Wis. 498; Chase v. Peck, 21 N. Y. 581; Sabler v. Signer, Under the equitable theory, which has been very generally adopted by statute, the mortgage is merely a lien on the premises, and the mortgagee has no right to possession except by means of a foreclosure of the mortgage, the mortgagor having the right to possession until removed after a decree of foreclosure and a sale thereunder. Davis v. Anderson, 1 Ga. 176: Seals v. Cashin, 2 Ga. Dec. 76; Ragland v. Justices, 10 Ga. 65: Elfe v. Cole, 26 Ga. 197: Jackson v. Carswell, 34 Ga. 279; United States v. Athens Armory, 35 Ga. 344; Burnside v. Terry, 45 Ga. 621; Vason v. Ball, 56 Ga. 268; Reasoner v. Edmundson, 5 Ind. 393; Francis v. Porter, 7 Ind. 213; Morton v. Noble, 22 Ind. 160; Grable v. McCulloh, 27 Ind. 472; Fletcher v. Holmes, 32 Ind. 497; Hall v. Savill, 3 Greene (Iowa) 37; Courtney v. Carr, 6 Iowa, 238; White v. Rittenmeyer, 30 Iowa, 268; Life Asso, of America v. Cook, 20 Kan. 19; Chick v. Willetts, 244 Barb. 606; Munro v. Merchant, 26 Barb. 383; Kan. 384; Duclaud v. Rousseau, 2 La. Ann. 168; Gorham v. Arnold, 22 Mich. 247; Caruthers v. Humphrey, 12 Mich. 270; Wagar v. Stone, 36 Mich. 364; Adams v. Corriston, 7 Minn. 456; Donnelly v. Simonton, 7 Minn. 167; Berthold v. Holman, 12 Minn. 335; Berthold v. Fox, 13 Minn. 501; Parsons v. Noggle, 23 Minn. 328; Rice v. St. Paul & P. R. Co. 24 Minn. 464; Kyger v. Ryley, 2 Neb. 20; Hurley v. Estes, 6 Neb. 386; Davidson v. Cox, 11 Neb. 250; Hyman v. Kelly, 1 Nev. 179: Whitmore v. Shiverick, 3 Nev. 288; Waring v. Smyth, 2 Barb. Ch. 119, 5 N. Y. Ch. L. ed. 580; Besser v. Hawthorn, 3 Or. 129; Thayer v. Cramer, 1 McCord, Ch. 395; Nixon v. Bynum, 1 Bailey, L. 148; Annely v. De Saussure, 12 S. C. 488; Wright v. Henderson, 12 Tex. 43: Mann v. Falcon, 25 Tex, 271; Walker v. Johnson, 37 Tex. 127; Wood v. Trask, 7 Wis. 566. Casey v. Buttolph, 12 Barb. 637; Jackson v. Delancy, 13 Johns. 537, 7 Am. Dec. 403; Moore v. Cable, 1 Johns. Ch. 385; Watson v. Spence, 20 Wend. 260; Phyfe v. Riley, 15 Wend. 248; Van Duyne v. Thayre, 14 Wend. 234; Bussey v. Page, 14 Me. 132; Pace v. Chadderdon, 4 Minn. 499; Pettengill v. Evans, 5 N. H. 54; Henry v. Confidence G. & S. Min. Co. 1 Nev. 619; Den v. Wright, 7 N. J. L. 175, 11 Am. Dec. 546; Harris v. Haynes, 34 Vt. 220. A mortgagee in possession, selling part of the land, is chargeable with its value at the date of sale. Turner v. Johnson, 13 West. Rep. 701, 95 Mo. 431. The right of a mortgagee in possession, or his assignee, to prevail against the grantee of the mortgagor, must have proceeded from the mortgagor prior to his conveyance to his grantee. Berlack v. Under this theory, a deed of trust to secure pay-Halle, 22 Fla. 236. “Supplemental Findings. "That said mortgage mentioned in finding of fact No. 2 was not produced at the trial of this action, although due notice was served upon defendant and his attorneys to produce the same, nor was its absence accounted for other than by the statement by witness (Moreland) that he had it when foreclosure suit was pending, and had looked for it since this action was begun, but that it could not be found, and that said mortgage was never recorded in the office of the county clerk of Multnomah County, Or. E. D. Shattuck, Judge." |signment of Boeschen's mortgage to the suc If the Boeschen mortgage was not foreclosed, it remained in full force and unsatisfied, and by the conveyances set out in the findings was owned by George Cooper at the time he placed the erections on the lots, and in such case his relation to the lots was that of a mortgagee in possession. I am aware that it was said by this court in Roberts v. Sutherlin. 4 Or. 219, that a mort gagee who obtains possession of the mortgaged premises with the assent of the mortgagor, afsession until payment of the mortgage debt. Such possession is a good defense against an action of ejectment brought by the mortgagor, so long as the mortgage debt remains unpaid. This is a correct statement of the law as far as it goes, but it does not go far enough. It is true Hill's Code, § 326, provides: "A mort 1. It does not affirmatively appear from the findings of the court below for what reason the United States Circuit Court for the District of Oregon adjudged the title to the premises described to be in the heir of A. C. McDonald, but no doubt it was on the ground that the circuit court in which the foreclosure proceed-ter default of the latter, may retain such posings were had failed to acquire jurisdiction over the heir-at-law of A. C. McDonald, deceased. Nor is it material in the form in which this record is presented. The findings, in effect, show that there was an attempted foreclosure, followed by a sale of the property; that such sale was approved by the court, and a proper deed executed to Boeschen, the plain-gage of real property shall not be deemed a tiff and mortgagee, who became the purchaser conveyance, so as to enable the owner of the at the sale and entered into the possession by mortgage to recover possession of the real virtue of said deed. He subsequently sold his property without a foreclosure and sale accordinterest in said premises, which passed with ing to law." This provision of the Statute is the possession thereof by mesne conveyances copied from the Revised Statutes of the State to George Cooper, who erected the house there of New York (2 Rev. Stat. p. 312, § 57); but These conveyances, if they failed to pass after the enactment of this Statute it was held title to the lots described, operated as an as-in that State that "if the mortgagee, after for on. Under this theory of the mortgage the mortgagor's interest is for all purposes, and under all circumstances, and between all parties, the legal estate in the premises with all the incidents and qualities of legal ownership; and the application of the term "equity of redemption" to this legal estate and its employment in the legislation of States adopting this theory of the mortgage is the occasion of constant misapprehension and confusion of thought. Trimm v. Marsh, 54 N. Y. 608; Chick v. Willetts, 2 Kan. 354. Mortgagee in possession. A mortgagee in possession is entitled to rents and profits until his claim is wholly paid, as against one who became the wife of the mortgagor after the execution of the mortgage. Wait v. Savage (N. J.) 13 Cent. Rep. 348. He will be subject to the duty of applying the rents and profits in discharge of the debt, and rendering an account of their receipt and application. Chamberlain v. Connecticut Cent. R. Co. 4 New Eng. Rep. 477, 54 Conn. 472; Caldwell v. Hall, 49 Ark. 508. He is only amenable for rents received, unless guilty of negligence or fraud, but is not entitled to compensation for trouble in care of the property. Turner v. Johnson, 13 West. Rep. 701, 95 Mo. 431; Stevenson v. Edwards, 98 Mo. 622; Lambertville Nat. Bank v. Boss (N. J.) 11 Cent. Rep. 238. He is only required to account for actual receipts less such sums as he may have paid out for taxes and necessary repairs, unless it is shown that more could have been realized by reasonable diligence, Pinneo v. Goodspeed, 9 West. Rep. 479, 120 Ill. 524. Where possession was not only wrongfully taken by the mortgagee, but accompanied by force and fraud, on a suit to redeem he cannot be charged with less than the whole rental value during his possession. Meigs v. McFarlan (Mich.) 40 N. W. Rep. 246; Brown v. South Boston Sav. Bank, 148 Where mortgagee was in possession of a portion of the mortgaged land, under a parol agreement with the mortgagor, and rented a portion of land in his possession to a tenant on a rental of half of the crop, and the portion of the mortgagee was set aside and delivered to him and was in his possession, replevin will not lie at the suit of the mortgagor against the mortgagee. Byers v. Byers, 9 West. Rep. 316, 65 Mich. 598. A mortgagee in possession may make such repairs as are reasonably necessary for the preservation of the property, but cannot make permanent improvements or repairs which conduce merely to his comfort or convenience. Raynor v. Drew, 72 Cal. 307. He is bound to keep the property without unreasonable deterioration, and is therefore credited with necessary repairs; but he has no right to enhance the value of the estate, and thus render it more difficult for the mortgagor to redeem. See Quinn v. Brittain, Hoff. Ch. 353; Moore v. Cable, 1 Johns. Ch. 385; Bell v. New York, 10 Paige, 49; 3 Pom. On redemption of the mortgage, he is entitled to be reimbursed for necessary repairs made on the premises. Johnson v. Hosford, 10 West. Rep. 251, 110 Ind. 578; Stevenson v. Edwards, 98 Mo. 622. the owner or mortgagor or their grantees, or a subsequent purchaser with notice of prior equities of the first purchaser, to make improvements on the premises, and have a prior lien therefor; but such improvements will pass upon sale of the premises. Cable v. Ellis, 8 West. Rep. 431, 120 Ill. 136. Mortgagee obtaining possession may retain it till his debt is paid. There is, however, no principle of law permitting Prior mortgagee is entitled to retain possession feiture, entered into possession, either by the consent of the mortgagor or by means of legal proceedings, he may defend himself there, at least till his debt is paid." Van Duyne v. Thayre, 14 Wend. 234. So it was said in Phyfe v. Riley, 15 Wend. 248: "Now, by the Revised Statutes, the mortgagee must complete his title by other proceedings before he brings his suit; but if the mortgagee, after forfeiture, obtains possession in some legal mode other than by an action, why should the mortgagor, or those claiming under him, recover the possession from the mortgagee without paying the money secured by it? Miner v. Beekman, supra, was a case where the mortgagee bid off the mortgaged premises at a void foreclosure sale, and entered into the possession of the premises; and the court held, if the defendants had acquired the rights of the mortgagee, they could defend their possession by virtue of the mortgage. So Shriver v. Shriver, 86 N. Y. 575, was also a void foreclosure by reason of the owner of until his claim is fully paid. Callanan v. Shaw, 19 Iowa, 183. As against a prior mortgagee in possession of the property, a receiver will not be allowed in favor of a subsequent mortgagee, as long as any part of the debt remains unpaid to the prior mortgagee. Patten v. Accessory Transit Co. 4 Abb. Pr. 235, 13 How. Pr. 502; Quinn v. Brittain, 3 Edw. Ch. 314; Bolles v. Duff, 35 How. Pr. 481; Rapier v. Gulf City Paper Co. 64 Ala. 330; Callanan v. Shaw, 19 Iowa, 183; Trenton Bkg. Co. v. Woodruff, 3 N. J. Eq. 210; Rowe v. Wood, 2 Jac. & W. 553. A senior mortgagee, acquiring possession by consent of the mortgagor after a foreclosure sale under a junior mortgage, but before the expiration of the year for redemption, has the rights of a mortgagee in possession. Jones v. Rigby (Minn.) 43 N.W. Rep. 390. The subsequent mortgagee must redeem from the prior mortgagee. See Mahon v. Crothers, 28 N. J. Eq. 567; Cortleyeu v. Hathaway, 11 N. J. Eq. 39, 64 Am. Dec. 478; Trenton Bkg. Co. v. Woodruff, supra; Schreiber v. Carey, 48 Wis. 213; Hiles v. Moore, 15 Beav. 175; Rowe v. Wood, supra. A prior mortgagce who has had possession of the mortgaged premises must account for rents and profits to the subsequent incumbrancer; but a subsequent incumbrancer in possession is not bound to account to the prior incumbrancer. Leeds v. Gifford, 4 Cent. Rep. 148, 41 N. J. Eq. 464. A mortgagee out of possession of the mortgaged premises cannot be held accountable for the rents and profits thereof. Van Duyne v. Shann, 5 Cent. Rep. 118, 41 N. J. Eq. 311. A mortgagee in rendering an account of the amount due on his mortgage is bound to use all reasonable efforts to make it just and correct; but having done so, an unintentional error, the result of accident or mistake, without culpable negligence, will not effect a forfeiture of his security. Gibbs v. Parsons, 2 New Eng. Rep. 912, 64 N. H. 66. A mortgagee, either in possession or out of possession, is not entitled to purchase the mortgaged estate at a tax sale, and set up the tax title as against the mortgagor or other mortgagees. It is to be presumed that he made the purchase for the common protection. Hall v. Westcott, 2 New Eng. Rep. 887, 15 R. I. 373. Purchaser at foreclosure sale. The purchaser will acquire title to the fixtures as a part of the realty. Voorhees v. McGinnis, 48 N. Y. 278; Snedeker v. Warring, 12 N. Y. 170; Bishop v. the property not having been made a party to the suit, and at the attempted sale under the decree a stranger, and not the mortgagee, became the purchaser and entered into the possession, and the court by Folger, Ch. J., said, distinguishing the case from Miner v. Beekman, supra: "The case is supposed to be like that of Miner v. Beekman, 50 Ñ. Y. 337. It is different in an important particular. There the entry was by the mortgagee, who was also the purchaser at the sale. He thus became a mortgagee in possession, and could defend against the owner of the equity of redemption or his representative any action, except one for an accounting of the rents and profits and to redeem." And this seems to be the settled rule in New York. Casey v. Buttolph, 12 Barb. 637; St. John v. Bumpstead, 17 Barb. 100; Munro v. Merchant, 26 Barb. 383; Winslow v. v. McCall, 32 Barb. 241; Randall v. Raab, 2 Abb. Pr. 307; Jackson v. Bowen, 7 Cow. 13; Watson v. Spence, 20 Wend. 260; Madison Ave. Baptist Church v. Baptist Church in Oliver St. 73 N. Y. 82; Trimm v. Marsh, 54 N. Y. 599; Bishop, 11 N. Y. 123, 62 Am. Dec. 68; Rice v. Dewey, 54 Barb. 455; Gardner v. Finley, 19 Barb. 317; Miller V. Plumb, 6 Cow. 665, 16 Am. Dec. 456; Robinson v. Preswick, 3 Edw. Ch. 246; Babcock v. Utter, 32 How. Pr. 439, 1 Abb. App. Dec. 27; Sullivan v. Toole, 26 Hun, 203; Main v. Schwarzwaelder, 4 E. D. Smith, 273; Sands v. Pfeiffer, 10 Cal. 258: Clore v. Lambert, 78 Ky. 224; Wight v. Gray, 73 Me. 297; Union Bank V. Emerson, 15 Mass. 159; Lackas v. Bahl, 43 Wis. 53. The rules as to fixtures which pass to a purchaser on a mortgage foreclosure sale are the same as those which govern a conveyance, from a grantor to a grantee. Snedeker v. Warring, supra. See Bishop v. Bishop, supra; Bank of Utica v. Finch, 3 Barb. Ch. 293, 299; Robinson v. Preswick and Mai. v. Schwarzwaelder, supra; Winslow v. Merchants Ins. Co. 4 Met. 306, 38 Am. Dec. 368; Union Bank v. Emerson, supra; Longstaff v. Meagoe, 2 Ad. & El. 167. The grantor of a mortgagor, subject to the mortgage, cannot retain possession against a purchaser under foreclosure. Chadwick v. Island Beach Co. 10 Cent. Rep. 863, 43 N. J. Eq. 616. A bona fide purchaser at a foreclosure sale of a senior mortgage, to which junior mortgagees were not made parties, who takes possession of the land and makes lasting and valuable improvements thereon, is entitled to credit therefor in a suit against him by the junior mortgagees to require him to redeem, and should not be charged with the rental value of the premises during his possession. Higginbottom v. Benson, 24 Neb. 461. Permanent improvements pass to purchaser. All additions of a permanent character by way of improvement are regarded as part of the mortgaged estate and will inure to the benefit of the holder of the mortgage, and will pass to the purchaser on a foreclosure sale. Baird v. Jackson, 98 Ill. 78; Wood v. Whelen, 93 III. 157. A house erected on the premises by the mortgagor becomes part of the realty and passes with it to the purchaser at the mortgage sale. Matzon v. Griffin, 78 Ill. 477; Dooley v. Crist, 25 Ill. 551. A bona fide occupant under claim of title, who erects permanent and valuable improvements, is entitled to compensation, at least as a set-off, against mesne profits; but knowledge or notice of adversary rights is fatal to the claim for compensation, and a mortgagee who repudiates the relation, or a purchaser from him with notice, is regarded as a wrong-doer, and is not entitled to compensation. Gresham v. Ware, 79 Ala. 192. |