Imágenes de páginas

length of about 150 miles of defendant's road, the writ because plaintiff's full Christian name and had under bis control all the section gangs does not appear is equivalent to a plea in abatealong that line; and there is nothing in the

ment and must be granted, where the person aprecord showing that Doyle, the general road

pearing for plaintiff says that he cannot amend

because he does not know the full name, and does master, in any way interfered with him in the

not ask time to ascertain it. manner in which the work of tbat division wes being conducted. He in fact controlled 2. A suit cannot be carried on by the that entire division absolutely, so far as em

initials merely of the Christian or first name

of the plaintiff, although the one commencing ploying and discharging the men was con

the action does not know the correct name. cerned. The order came from Doyle to remove these poles, because they were to be

(January 24, 1890.) taken to another division or branch of the same road. Doyle was not present at the time

ERR of the injury, and the fair inference is that

RROR to the Circuit Court for Wexford

County to review a judgment reversing a whatever power Doyle would have had, if judgment of a justice of the peace dismissing present, Light had like power, and represented a replevin suit because plaintiff's full Christian the defendant company as fully as Doyle would dame did not appear in the proceedings. Rehave done. He did no manual labor himself, versed. but had the full oversight, care and manage- The case sufficiently appears in the opinion. ment of it. It is apparent that the business of Mr. I. C. Wheeler, for defendant, appelthe railroad could not be carried forward with- lant: out this division of labor and responsibility. There is no provision for commencing or It was necessary that these beads of depart, maintaining a suit where the name of the plainments and divisions should be made, and tiff is unknown, except in partnership cases, power delegated to each head. Under such i wbere, if the names of all of the several parties circumstances, and well-settled rules of law, it are unknown, suit may be commenced in the must be beld that Light represented the Com

partnership name. pany; and for his negligence, while in the line

How. Stat. $ 6872. of the duties so assigned and delegated to him, The name of the plaintiff should be given in the Company must be held responsible. It is full, both the Christian and the surname. evident ibat the plaintiff and the other section Tiffany, Justice's Guide,pp. 25, 26; Franklin bands there looked upon Light as the respon- v. Talmadge, 5 Johns. 84; Roosevelt v. Gardisible head, from whom they received their nier, 2 Cow. 463; Milk v. Christie, 1 Hill, 102. orders, and whom they were bound to obey, Messrs. Pratt & Davis, for plaintiff, apor else they would receive their "red tickets,”

pellee: or discharges from their employment. Any The affidavit having been made and the writ other rule than this would enable the master to issued in the name of H. C. Fisher, the preescape all liability, by parceling out his work sumption would be that that was his true name, to different heads of departments or divisions, until the question was raised, and the proof esand retiring from any management or control tablished the contrary by plea and abatement of it; and ihe more he abandoned it to others stating the true name. -the more he neglected it—the less would be

Cowen, 1002; Tiffany,Justice's Guide, 4th ed. be liable.

29; Watson v. Watson, 47 Mich. 427; 1 Greene, When the master appoints a middleman Pr. p. 206; Fewlass v. Abbott, 28 Mich. 270. with such powers as were delegated to Light If there was a mistake in the plaintiff's name, in this case, or where the business is of such a it was the duty of the justice to permit an nature that it is necessarily committed to amendment in harmony with the facts. agents, with full power to employ and dis

How. Ann. Stat. $$ 6817, 7631; Tiffany, Juscharge those acting under them, and full tice's Guide, pp. 28, 29, 161; Baldwin v. Talbot, and absolute control of the work, the princi- 43 Mich. 12; Phelps v. Town, 14 Mich. 381; Van pal is liable. The master is in a position to Sickle v. Kellogg, 19 Mich. 49; Webber v. Bolte, 51 select such middlemen and agents with care, Mich. 113. and in regard to their fitness for the place, and is responsible for their negligence. Laning v. Morse, J., delivered the opinion of the New York Cent. R. Co. 49 N. Y. 521; Malone

court: V. Hathaway, 64 N. Y. 9.

One Eli H. Salisbury made affidavit in beFor the errors pointed out, the judgment be- half of plaintiff, and procured the issue of a lou must be set aside, with costs, and a new writ of replevin against the defendant. The trial granted.

requisite bond was also filed. On the return The other Justices concurred.

day of the writ, Salisbury appeared for plaintiff. The defendant answered in person, and

moved to dismiss the writ, because plaintiff's H. C. FISHER

full Christian name did not appear in affidavit,

writ or declaration. The justice returns that Charles E. NORTHRUP, Appt.

he asked Mr. Salisbury if he could amend, and

insert full Christian name of H. C. Fisher, and (.... Mich.....)

Mr. Salisbury replied that he could not, as he 1. A motion in justice's court to dismiss did not know the full Christian name of said

NOTE.- Pleading; initial letters of name. name; for example, that "C. B. & Q. R. R. Co." Courts cannot take judicial notice that a well- ! means the Chicago, Burlington & Quincy Railroad known railroad company is popularly known by Company. Accola v. Chicago, B. & Q. R. Co. 70 the initial letters of the words constituting its full Iowa, 185.

Fisher. Thereupon, the plaintiff being unable , issory note made by Fewlass payable to 0. B. to amend, tbe justice dismissed the case, and Abbott or bearer. Objection was taken by rendered a judgment of popsuit against the defendant before the justice that the plaintii plaintiff, together with $3.25 costs of suit. was not properly named in the process, which Salisbury, in the name of H. C. Fisher, sued was overruled, and judgment rendered for out a writ of certiorari to the Circuit Court of plaintiff. Defendant removed tbe cause to the Wexford County, where, on hearing, the judg- circuit by certiorari, where the judgment was ment of the justice was reversed. The case affirmed. When it came to this court on error, comes here on wit of error from the circuit. it was beld that it would not be presumed, for

It is contended, in support of the judgment the purpose of invalidating the judgment and of the circuit, that any mistake in the name of in the absence of any showing on the subject, the plaintiff must be iaken advantage of in a that the plaintiff had any other name than the plea of abatement. Pleading in justice's court one used. is not required to be technical. The effect of In the case at bar it was substantially ad. defendant's motion was the same as a plea in mitted in justice's court that plaintiff bad sued abatement. The plea was also admitted when by the initials of his Christian dame, and bis Salisbury, who appeared for plaintiff, said that bond executed on the issue of the writ of cerhe could not amend, because he did not know tiorari shows bis true name to be Hart C. Fish. plaintiff's full name. This was equivalent to er. A person sued has a right to know who is saying that H. C. Fisher was not the true or making claim against him. If the plaintit full name of plaintiff. The justice was then plants the action bimself, there is no bardship warranted in dismissing the case, as Salisbury in requiring bim to plead his proper name in did not ask for time to ascertain plaintiff's full. If the suit is commenced by an agent, name, who it appears lived in Chicago, Ill. who is not acquainted at the time with the full

It is a usual supposition that one commencing Christian pame of his principal, it is certainly an action will know the correct name of the bis duty to ascertain and plead the same before plaintiff, but if he does not be cannot for that or at the time issue is joined, and there is no reason proceed with his suit by a wrong dame, good reason why he should not do it. I think or carry it on by the initials of the Christian the judgment of the justice was correct, and or first name.

should be affirmed, with costs of this court and The case of Feulass v. Abbott, 28 Mich. 270, the circuit against the plaintiff. is not in point. There the plnintiff commenced The judgment of the Circuit Court is retersech suit in the name of 0. B. Abbott upon a prom

The other Justices concurred.


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John F. BETZ, Respt., APPEAL by defendant, Verner, from a de Henry VERNER, Impleaded, etc., Appt.

plaintiff in a suit to foreclose a mortgage and

to compel a return to the mortgaged premises (-.... ....N. J. Eq.......)

of a building wbich bad been removed there

from. Reversed. *1. A mortgagor in possession removed a building to another lot of land, to make

Statement by Scudder, J.: rooin for a part of a larger building and improvements, and sold the lot, and building af

The bill of complaint sets forth that the ap fixed to it, to a bɔna fide purchaser. Held, on bill pellee, John F. Betz, held a mortgage on a lot for foreclosure of the mortgage, that the build- of land in the City of Camden, given by August ing could not be returned to the mortgaged Muench, one of the defendants, to secure a bond land, and the remedy of the mortgagee was at conditioned for the payment of $1,500, witb inlaw, for the removal of the building.

terest, dated October 10, 1885, duly recorded 2. A mortgagee will have the security of his October 17, 1885, and that there were other lien protected by injunction.

subsequent incuni brances; that when the mort.

gage was executed and delivered to him the (February 20, 1890.)

premises consisted of a two-story frame dwell. *Head notes by SOUDDER, J.

ing-house, and the lot of land therein described,

NOTE.- Mortgage; rights of mortgagor.

Mortgagor in possession. The mortgagor bas a right to lease, sell and, in Possession by the mortgagor or his grantees will every respect, deal with the mortgaged premises as not be adverse so long as payments of principal or owner so long as he is permitted to remain in pog. interest are made, or the relation of mortgagor session, and so long as it is understood and held and mortgagee is recognized by both parties. that every person taking under him takes subject Lewis v. Schwenn, 6 West. Rep. 855, 93 Mo. 26; Bart. to all the rights of the mortgavee, unimpaired and lett v. Sanborn, 3 New Enz. Rep. 168, 64 N. H. 70. unaffected. Teal v. Walker, 111 U.S. 242 (28 L. ed. A mortgagor in possession, as against everybody 418'; American Bridge Co. v. Heidelbach, 94 U. S. but the mortgagee, and against bim for all pur. 798 (24 L. ed. 144); Clark v. Curtis, 1 Gratt. 289; poses except the security of the mortgage debt, is Hunter v. Hays, 7 Biss. 462: Souter v. La Crosse R. seised of the fee in the land. Donation Trustees v. Co. Woolw, 80, 85; Foster r. Rhodes, 10 Nat. Bankr. Streeter, 2 New Eng. Rep. 862, 64 N. H. 106. Reg. 523.

He is as absolute an owner of the property as it The removal of fixtures takes them out of the the mortgage had no existence. Howe v. Wads. lien. See note to Cook v. Cooper (Or.) 7 L. R. A. worth, 59 N. H. 397; Northy v. Northy, 15 N. H. 141: 279.

Bryant v. Morrison, 44 N H. 288; Worster v. Great

whereon the house was erected; that in Febru. I existing debt, without parting with anything ary, 1887, without his knowledge or consent; of value, is not entitled to the character of a Muench removed the dwelling house to another bona fide purchaser for value. lot, about forty feet northward; that at the time Mingus v. Condit, 23 N. J. Eq. 313; De Witt of removal this other lot belonged to E. A. v. Van Sickle, 29 N. J. Eq. 209; Basset v. Nos Armstrong, trustee for an association, who by worthy, 2 Leal. Cas. in Eq. 82. deed dated July 29, 1887, conveyed the land to Not being a bona fide purchaser for value, Muench, and Muench and wife, by deed dated be must take the property subject to the August 3, 1887, conveyed to Henry Verner. equities of respondent, which, being prior, He further claims that the removal of the take precedence. house, the purchase and sale of the property, Wheeler v. Kirtland, 24 N. J. Eq. 552; Kerr, were fraudulent; that the security of his mort- Fraud and Mistake, 322; Basset v. Nosworthy, gage is tbereby diminished; that it is still sub- 2 Lead. Cas. in Eq. 45. ject to the lien of bis mortgage, and should be A mortgagor will not be permitted to comreturned to the land described therein; that mit waste upon the mortgaged premises to the Muench bas erected partly on the mortgaged extent of rendering them an insufficient seculot of land a two-story frame building, used as rity for the mortgage debt. a dancing hall and bowling alley, twenty-four Coggill v. Millburn Land Co. 25 N. J. Eq. 87. feet in width and fifty eight feet in length, Equity will redress the injury of past waste and the part thereof erected on the mortgaged in favor of a mortgagee where he bas no legal premises is four feet in width and fifty-eight remedy. He may follow and take the part feet in depth; that other persons claim building severed from the realty wherever be can find it. liens on the building, and the lot whereon it Jones, Mortg. 453; Hoskin v. Woodward, 45 stands; and the title to the land on which the Pa. 42; High, Inj. $ 481. building is erected, adjoining the mortgaged Equity will complete the remedy by a reland, is now in other parties. He also sets forth turn thereof to the realty. that the lot of laud, without the building, is Jones, Mortg. 453. worth about $250, and inadequate to secure and raise the amount of his mortgage; and that Scudder, J., delivered the opinion of the Muench is insolvent. He therefore prays a court: foreclosure and sale of the mortgaged premises, The exact form in which this decree is made that Muench and Verner may be decreed to for the removal of the house back to the mortreturn the frame dwelling-house to and upon gaged premises from which it was taken is, so the lot of land described in this mortgage, and far as my examination of the authorities has that they may be restrained from conveying or gone, without precedent; but this may be pot creating any lien on the same. The defendant objectionable, if, in admivistering equitable Verner denies all fraud; claims to be a bona fide relief, it be found necessary to apply a remedy purchaser for full value, and without notice which is unusual. The design of the bill is to of complainant's mortgage, or of the removal restore to the mortgagee his security, which he of the dwelling house from the mortgaged alleges has been taken from him by the severpremises. Upon the proofs taken, a decree was ance of the dwelling-house from the land made that, unless Verner pay the complain- covered by his mortgage, and its annexation to ant's debt and costs within twenty days, a re- land owned by another. The defense is that ceiver be appointed to take charge of the dwell- the house was removed on another lot, to make ing-bouse, and move it back to the lot whence room for a larger building which was to be exit was removed, and that the mortgaged prem- tended over on the lot of land from the adjoinises be sold to satisfy the debt secured by the ing premises; that the defendants acted in good mortgage, with other incumbrances, and costs. faith; that the complainant bad notice, and, if The defendant Verner appeals from this de- he did not consent, did not object; that a full

money consideration was paid, without any

actual notice of the lien of the mortgage on the Mr. John W. Wartman for appellant. land from which the building was removed,

Mr. William S. Casselman, for respond- and that the defendant Verner, who appeals, ent:

is a bona fide purcbaser of the building. The A purchaser who has obtained a legal title facts are not as fully proved as they might have as a mere security for, or payment of, a pre- ' been, and are thus likely to mislead the court.


Falls Co. 41 N. H. 16; Blake v. Williams, 86 N. H. A mortgagee will have the security of his lien 40; Ladd v. Wiggin, 35 N. H. 421; Johnson v. Brown, protected by injunction. Emmons v. Hinderer, 24 31 N. H. 405.

N. J. Eq. 39; Brady v. Waldron, 2 Johns. Ch. 148; As against the mortgagee he is the absolute own. Pasco v. Gamble, 15 Fla. 566. er for all purposes except the security of the mort- A mortgagee may sue for damages for permanent gage debt. Morrison v. Manchester, 58 N. H. 560; injury impairing his security, as for flowage from Smith v. Moore, 11 N. U. 55; Glass v. Ellison, 9 N. a reservoir maintained by a municipality; and setH. 69.

tlement in good faith by arbitration is binding on Protection of mortgagec.

the mortgagor. James v. Worcester, 2 New Eng. The court will see to it that the rights of the Rep. 354, 41 Mass. 351. parties are secured and protected, and will give A purchaser of land subject to a mortgage, who direction to the proceedings accordingly. Van removes a building therefrom to other lands beDoren v. Dickerson, 33 N. J. Eq. 392; Lansing v. longing to him, thereby rendering the security in. Goelet, 9 Cow. 361; Ellis v. Craig, 7 Johns. Ch. 7; Ly- adeguate, is guilty of waste, and is liable, in case man v. Sale, 2 Johns. Ch. 487; Campbell v. Macomb, of deficiency, for the value of the building so re4 Johns. Ch. 534; American L. & F. Ins. & T. Co. v. moved. Edler v. Hasche, 67 Wis. 653. See note to Ryerson, 6 N. J. Eq. 9.

Cook v. Cooper 10r.) 7 L. R. A.279. TRA.

We do not find in the evidence proof of the cbase, -cast suspicion on the consideration; but knowledge of the defendant Verner of the is the proof now stands, with the positive evi. transfer of the building from one lot of land dence of three witnesses to sustain it, and to the other, by which be may be charged with nothing more than these circumstances to overconstructive notice of the lien of the mortgage, come it, we do not feel warranied in saying por actual notice of a fraud tbat was intended, that this payment was not made. Muench which appears to have been satisfactory to the swears positively that he received these sums court below. It appears that Verner lived in of money, and applied them to making the imPbiladelphia up to February 15th, when he provements for the summer garden. moved to Camden, and opened a grocery store Assuming that the appellant, Verner, bought about two squares from Muencli's place of the house, and paid for it a valuable considerabusiness, and after that time went there fre- tion, without knowledge of its removal, as apquently. He kept bar for him from May to pears by the direct proof, and that Muench sold August. Muench testifies that the house was it, as he testifies, to raise money to pay for the removed about the 3d or 4th of February, and hall building, and the improvements he was thinks they started in January. This was be-making, the important question is presented fore Verner came to Camden. Verner says he whether the complainant is in a position to obdid not know that the house had been moved tain the relief he asks here for the injury be from another lot until after he bad bought it. has sustained. Can a court of equity return This evidence, if believed, shows that be to the wasted property the building that bas. peither saw nor knew that the house was been wrongfully removed, and sold to a bona moved from the mortgaged premises, and there fide purchaser, after being affixed to other land was not a fraudulent knowledge or collusion not included in the mortgage? in the purchase. Without proof of such collu- The subject of legal and equitable relief, sion, the testimony of two witnesses that where such removals are made, is considered by Muench told them • be removed the dwelling- Mr. Jones in bis book on Mortgages (&$ 143, house so that, if the sheriff come on bim, he 144, 453, 684), with abstracts from cases and would bave a house anybow,” is not compe- numerous citations in the notes. It is a questent to show that Verner bad knowledge of a tion on which the authorities are divided, and fraudulent purpose, and participated in it. If depends for its solution on the effect given to a said, it was spoken between other parties in his mortgage of lands. It seems that wbere the absence. Faulkner v. Whitaker, 15 N. J. L. morigage is regardeil as a conveyance of the le438.

gal title to the property, giving the mortgages The payment of the consideration by Ver. the right of possession, his legal owneiship, ner to Muench is testified to by them, and by and actual or constructive possession, give him Muench’s wife, who says she saw

money paid, the right to follow and recover the property without knowing the amount. The purchase severed. The principle applied is that propprice, they say, was $1,300, paid in different i erty severed from the realty, so as to become a sums, at several times,-$400 on February chattel, belongs to the legal owner of the land; 15th, $300 July 30th, $500 on August 1st, and but where the mortgage is regarded merely as $100 in wages due Verner. The first money a lien for security, and the niortgagor bas the was brought from Philadelphia, obtained by right of possession until ejectment or foreclosselling out a grocery store there, and cash on ure, there the mortgagee bas merely the right hand. The second and third payments were, to restrain the removal of the property by inas Verner says, borrowed from his brother. junction, to protect his lien, or, after the reThe first sum was $100, loaned to assist Muench moval, only a right to recover damages for the in building. Afterwards, he says, when he wrongful diminution of his security. asked for it, he was told that he (Muench) bad The case of Hamlin v. Par'80n8, 12 Minn. no money, and he offered to sell the house and 108 (Gil. 59), comes nearer to the conclusion lot. He did not want it, but, with the advice reached by the decree in this case than any and help of his brother, he bought it to save other to which my attention bas been called. losing the money he bad loaned. Although There the mortgagor moved a dwelling on an this money was all paid before August 3d, adjoining lot belonging to bis wife, without when the deed was dated, it was not a pre-ex- the knowledge of the mortgagee, but with the isting debt, without parting with anything of knowledge of the wife; abd it was held that the value at the time of conveyance, depriving the lien on the dwelling-bouse remained, and the defendant Verner of the character of a bona mortgagee might sell the lot of land covered by fide purchaser for value, as was argued by the mortgage, and afterwards the house, to connsel; but all, excepting the first two items, satisfy his mortgage. were parts of a present consideration, appro- But in Harris v. Bannon, 78 Ky. 568, where priated, when made, to its payment, and sulfi- a petition was filed in equity to subject to the cient to constitute the defendant Verner a bona lien created by the mortgage a number of cotfide purchaser in equity. Mingus v. Condit, tage buildings which had been removed to 23 N. J. Eq. 313; De Witt v. Van Sickle, 29 N. other land, and aflixed, it was held that when J. Eq. 209; Busset v. Nosworthy, 2 Lead. Cas. the buildings were severed from the morigaged in Eq. 82.

premises, and bad become part of another freeThe small profit derived from the grocery hold, the lien upon them was gone. store conducted by bis wife while he attended In Peirce v. Goddard, 22 Pick. 559, the mabar for Muench, and before that time; the fact terials of a dwelling-bouse or mortgaged land that Muench collected rent of the tenant, after were used in the construction of a house upon the alleged sale, as Verner's agent; and the another lot of land. It was said the rigbt of failure to produce the brother who was said to property vested in the grantee of that land, have loaned the money to complete the pur-T and the mortgagee could not maintain trover against the purchaser, either for the new house, condition, but as a security for debt, the legal or the old materials used in its construction. estate being considered as subsisting only for

In Cooper v. Daris, 15 Coon. 556, millstones that purpose. This is elsewhere called the were severed from the mill, and sold by the equitable and the American doctrine, by which mortgagor. It was held that the title passed the mortgagor has a right to lease, sell and in to the purchaser, and there was no power to every respect deal with the mortgaged premi. seize them after they had been severed and ses as owner so long as he is permitted to recarried away.

main in possession, and so long as it is under: In Buckout v. Swift, 27 Cal. 433, where a stood and beld that any person taking under house subject to a mortgage was floated off by bim takes subject to all tbe rights of the morta flood into the street, and was bought while in gagee. 4 Kent, Com. 157. that position, it was said that the severance There is no difficulty in applying this rule affected the right of lien; that a building on while fixtures remain attached to the realty; land was subject to the lien of the mortgage and so long as the mortgagor continues in whether there at the time of the mortgage or possession, or when the property severed passes built there afterwards, but, when severed, the into the possession of a person in collusion lien was lost. If the contrary were the law, with him to defeat the lien and security of the everything affixed to mortgaged lands might, mortgagee, whether upon or off the mortgaged when severed and sold to a bona fide purchaser, premises, it would seem that the rights of the be followed and reclaimed. Clark v. Reyburn, mortgagee would be unaffected. But when 1 Kan. 281; Kimball v. Darling, 32 Wis. 684; the property is severed, and sold to an innocent Van Pelt v. McGraw. 4 N. Y. 110; Gardner v. purchaser, the lien in equity is gone, and the Heartt, 3 Denio, 232; Lane v. Hitchcock, 14 remedy of the mortgagee is an action at law Jobns. 213; Hutchins v. King, 68 U. S. 1 against the mortgagor, and those who act with Wall. 53 [17 L. ed. 544); Gore v. Jenness, 19 Me. him, to impair or defeat the security of the 53; Gooding v. Shea, 103 Mass. 360; Byron v. mortgage. Chapin, 113 Mass. 308; Wilson v. Maltby, 59 The case of Kircher v. Schalk, 39 N. J. L. N. Y. 126, and many other cases, -- might be 335, holds that a mortgagee of real estate, cited as illustrating the differences of opinion, whose debt is due, but who bas not entered and the principles applied, in determining the into possession, cannot maintain replevin for rights of parties when fixtures are severed and a steam-engine affixed to the realty subject to sold from mortgaged lands.

the mortgage, which the mortgagor or his A distinction is made in Hoskin v. Wood- assigns had severed from the realty, and reward, 45 Pa. 42, where it is said that a moved from the premises, because the mortmorigagor may sell, in the usual way, lumber, gagee cannot, with propriety, insist upon being fire-wood, coal, ore or grain growing on legally entitled to a remedy, the enforcement the land, until the mortgagee stops him by eject- of which pertains to the general legal ownerment or estrepement; for these things are usu- ship of the land. ally intended for consumption and sale, and But in Jackson v. Turrell, 39 N. J. L. 329, it the sale of them is the usual way of raising the was decided that a mortgagee may maintain money to pay the mortgage. But in the case an action on the case against the mortgagor or of a factory or other building it is from the use his assigns for an injury to the security resultof it as it is, and not by its consumption or its ing from the removal of fixtures, or other sale by piecemeal, that all its profits are to be waste, by the defendant. Notice, without derived.

fraud, was said to be sufficient to charge the It is manifest that this cannot be reconciled purchaser with liability. It is not necessary with cases cited above, as furnishing a rule in this case to determine whether a court of applicable to all fixtures, but that any general law will enforce this remedy against a bona rule must be based on the right of property, fide purchaser without actual notice, or the If the morigagee bave the legal ownership and exact form of remedy that may be then used; right of possession, be may follow things but in a court of equity the right of such pursevered and removed from the mortgaged chaser is equal to the equity of a mortgagec lands without his consent wherever he can who has not such title to the article severed find them. If he holds title under the mort- that he can maintain an action for the recovery, gage only as security for bis lien, then the in specie, of the fixtures removed. It is a maxremedies appointed for preserving the security, im ibat where there is equal equity the law and compensating for any loss sustained by its must prevail. It is upon this account that a. diminution, are such only as the mortgagee court of equity constantly refuses to interfere, may use. The theory in the latter case is that, either for relief or discovery, against a bona as to innocent third parties, the mortgagor is fide purchaser of the legal estate for a valuable the owner of the property, and may sever and consideration, without notice of the adverse sell until restrained by injunction, or ejected by title, if he chooses to avail himself of the deentry, or barred by foreclosure. In any view fense at the proper time, and in the proper taken of the respective rights of mortgagor and mode. 1 Story, Eq. Jur. $ 64c. mortgagee, the latter may have the security of The conclusion given in 2 Pom. Eq. Jur. bis lien protected by injunction. Brady v. $743, on this matter is that, wherever one or Waldron, 2 Johns. Ch. 148; Emmons v. Hinder- the other of the parties has a legal estate over er, 24 N. J. Eq. 39.

which a court of law can exercise jurisdiction, In our State the title of the mortgagee 10 then, in an equity suit between them, as a lands under his mortgage has been detined by general rule the defense of a bona fide purchaser this court in Shields v. Lozear, 34 N. J. L. 496 for valuable consideration will avail as against -503, where it is said that the mortgage is re- the plaintiff, whether he has a legal or an equigarded, not as a common-law conveyance on table estate. In either case the court of cguity

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