the mortgagor, who holds the possession, commits waste, or in any manner attempts to diminish the value of the property, or where it consists of personalty, is about to remove it beyond the reach of his creditor, so as to reuder it unequal to the discharge of the debt, or to place it so as not to be forthcoming for the satisfaction of the debt, he may be restrained by injunction, and an injunction for such a purpose may be obtained at any time before the debt becomes due, for otherwise a fraudulent mortgagor might at his pleasure deprive the creditor of all benefit from his mortgage." To the same effect is Brady v. Waldron, 2 Johns. Ch. 148. This doctrine has been invoked to prevent the mortgagor from removing buildings from the mortgaged premises, and thus impairing the security of the mortgagee: Dorr v. Dudderar, 88 Ill. 107; also to prevent him from removing machinery and other fixtures: Taylor v. Collins, 51 Wis. 123. And quite often to prevent him from cutting and removing timber from the mortgaged premises: Bunker v. Locke, 15 Wis. 635; Fairbank v. Cudworth, 33 Wis. 358; Emmons v. Hinderer, 24 N. J. Eq. 39. In State Savings Bank v. Kercheval, 65 Mo. 682, 27 Am. Rep. 310, it was decided that as between the mortgagee and mortgagor a frame building erected by the side of a mill for use as an office in connection with the mill is part of the realty, although erected after the mortgage was given, intended to be temporary only, and to be ultimately removed, and not attached to the mill, nor fixed to the ground, but resting upon wooden blocks sitting upon the surface of the earth; and its removal may be enjoined without allegation and proof that such removal would work an irreparable injury to the land, and although the mortgagor who threatens to remove it is a person of undoubted solvency.

It is sufficient to show that there is no adequate remedy by action for damages. "There are inconveniences and perplexities to which one may be subjected by a trespass such as we are now considering for which a jury could not, under the rules of law, fully compensate him, and we think the provision of our statute broad enough, however the law may have been before its enactment, to authorize a resort to injunction in such cases": State Savings Bank v. Kercheval, 65 Mo. 682-689; 27 Am. Rep. 310.

In many cases it is held, however, that a mortgagor in possession cannot be enjoined from committing waste or removing buildings or fixtures from the mortgaged premises unless the acts complained of are shown to be such as to render the security insufficient for the satisfaction of the mortgage debt, or at least of doubtful sufficiency: Moriarity v. Ashworth, 43 Minn. 1; 19 Am. St. Rep. 203; Buckout v. Swift, 27 Cal. 434; 87 Am. Dec. 90; Lavenson v. Standard Soap Co., 80 Cal. 245; 13 Am. St. Rep. 147; Vanderslice v. Knapp, 20 Kan. 647; Coker v. Whitlock, 54 Ala. 180; Harris v. Bannon, 78 Ky. 568. These cases all admit the rule that the mortgagor may be enjoined from committing waste or removing buildings or fixtures from the mortgaged premises in a proper case. They only add that to entitle the mortgagee to this remedy he must allege and prove that his security will be rendered insufficient or greatly impaired by such acts, otherwise a court of equity refuses to interfere.

A court of equity does not, unless under very special circumstances, grant an injunction when waste has been committed by the mortgagor in possession to prevent timber which has been cut from being removed. In ordinary cases the remedy by injunction applies only to stay or prevent future waste: Watson v. Hunter, 5 Johns. Ch. 169; 9 Am. Dec. 295. In an action to foreclose a mortgage, after judgment, and while awaiting confirma

AM. ST. REP.. VOL. XLIIL-28

tion of the sale made in pursuance thereof, the court has authority on the petition of the purchaser to restrain the mortgagor from committing waste: Mutual Life Ins. Co. v. Bigler, 79 N. Y. 568. On an application to restrain a mortgagor from cutting timber on a tract of mortgaged land which has been burnt over, if it is shown that the cutting of the burnt timber is to prevent it from rotting, and that cutting it is a permanent benefit to the land, the court will not enjoin the cutting, but will decree that the proceeds of the cut timber be applied on the mortgage debt: Buck v. Getsinger, 5 N. J. Eq. 391. If works for making brick have been constructed, and clay. beds opened on common property by tenants in common, then, as between a mortgagee of an undivided share or interest in the land and the cotenants in possession it is not waste for the latter to continue the business in the customary way, so as to entitle such mortgagee to an injunction restraining such use of the premises and the removal of the clay, thus suspending the business: Russell v. Merchant's Bank, 47 Minn. 286; 28 Am. St. Rep. 368.

Trespass for Waste or Removal of Fixtures.—In several of the states the doctrine prevails that after condition in the mortgage broken, the mortgagee may maintain trespass or trover to recover from the mortgagor in possession for the value of timber cut and removed, or for the value of buildings or fixtures removed from the mortgaged premises: Page v. Robinson, 10 Cush. 99; Butler v. Page, 7 Met. 40; 39 Am. Dec. 757; Hapgood v. Blood, 11 Gray, 400; Pettengill v. Evans, 5 N. H. 54; Smith v. Moore, 11 N. H. 55; Stowell v. Pike, 2 Me. 387; Leavitt v. Eastman, 77 Me. 117; Langdon v. Paul, 22 Vt. 205; Harris v. Haynes, 34 Vt. 220; Hagar ▼. Brainerd, 44 Vt. 294. The mortgagee may maintain trespass against the mortgagor or a stranger, who, under authority from the mortgagor in possession, removes a building erected on the land by the mortgagor after the execution of the mortgage: Cole v. Stewart, 11 Cush. 181; Hagar v. Branierd, 44 Vt. 294. If there are two mortgages upon the land, and the mortgagor in possession, without the consent of the mortgagees, cuts timber upon the premises, after the first mortgage is discharged, the second mortgagee may maintain trespass for the cutting of the timber: Sanders v. Reed, 12 N. H. 558. If the mortgagee of a reversion of an estate in dower enters after condition broken he may maintain an action against the tenant for life to recover for waste committed before the breach of the condition in the mort. gage: Fay v. Brewer, 3 Pick. 203. This right to maintain trespass against the mortgagor for injury to the mortgaged premises inures to the assignee of the mortgagee: Linscott v. Wecks, 72 Me. 506; and if the assignee of the mortgagor removes fixtures from the land, though erected by him after the execution of the mortgage, the assignee of the mortgagee may maintain an action of trespass against him for their value: Smith v. Goodwin, 2 Me. 173. A mortgagee of land may maintain an action of tort in the nature of trespass or trover against a third person who buys of the mortgagor in possession wood and timber wrongfully cut by the latter from the mortgaged land: Searle v. Sawyer, 127 Mass. 491; 34 Am. Rep. 425; Atkinson v. Hewett, 63 Wis. 396; Gore v. Jenness, 19 Me. 53; Frothingham v. McKusick, 24 Me. 403. The mortgagee may maintain an action in the nature of trover against a person whose servant unlawfully takes turf from the mortgaged land, and uses it in his master's business: Wilbur v. Moulton, 127 Mass. 509; and generally a mortgagee out of possession may maintain an action of trespass against a stranger for an injury to the mortgaged premises: Leavitt v. Eastman, 77 Me. 117; James v. City of Worcester, 141 Mass. 361. We apprehend the general rule to be that until condition broken in the mortgage, and a

forfeiture thereof, the mortgagee has no such property in timber cut, or fixtures removed from the mortgaged premises, as entitles him to maintain trespass or trover against the mortgagor or other person who removes such property: Peterson v. Clark, 15 Johns. 205; Angier v. Agnew, 98 Pa. St. 587; 42 Am. Rep. 624; Pueblo etc. R. R. Co. v. Beshoar, 8 Col. 32. Trespass by the mortgagee for removing a building from the mortgaged premises cannot be maintained unless the mortgagee can show a deficiency upon a regular and legal foreclosure and sale: Taylor v. McConnell, 53 Mich. 587; Tomlinson v. Thompson, 27 Kan. 70. The mortgagor is not liable in trespass or trover to the mortgagee for the value of timber, cut or removed after condition in the mortgage broken, if the mortgagor has a license, express or implied, to remove such timber: Smith v. Moore, 11 N. H. 55; Page v. Robinson, 10 Cush. 99; Searle v. Sawyer, 127 Mass. 491; 34 Am. Rep. 425; Ingell v. Fay, 112 Mass. 451. A mortgagor in possession may, either before or after condition in the mortgage broken, cut firewood and timber for repairs, for use on the premises, and for other ordinary uses according to well-known and existing usages of good husbandry, without being liable therefor in trespass to the mortgagee. It is ouly when the act of the mortgagor in cutting the timber is wrongful, and impairs the security of the mortgagee, that he is liable to him in trespass or trover: Hapgood v. Blood, 11 Gray, 400; Wright v. Lake, 30 Vt. 206; Judkins v. Woodman, 81 Me. 351.

Replevin.-In some jurisdictions the rule is maintained that the mortgagee may maintain replevin against the mortgagor in possession, or a purchaser from him with notice, actual or constructive, of the lier of the mortgage, for timber cut or fixtures or buildings removed from the mortgaged premises, whereby the mortgage security is impaired and its value diminished: Waterman v. Matteson, 4 R. I. 539; Hoskin v. Woodward, 45 Pa. St. 42; Mosher v. Vehue, 77 Me. 169; In re Bruce, 9 Ben. 236. If a house has been severed from the mortgaged premises without the consent of the mortgagee, he may maintain replevin against a stranger at any time before it becomes attached to and forms part of other realty, and if the building is again severed from such other realty to which it has attached before the mortgage is satisfied or discharged, the mortgagee may regain it by the action of replevin: Dorr v. Dudderar, 88 Ill. 107. In other jurisdictions, however, this doctrine is explicitly denied, and it is asserted that a mortgagee whose debt is due, but who has not entered into possession, cannot maintain replevin for a specific chattel or building which the mortgagor or his assigns have severed and removed from the realty, and which before severance was a fixture or part of the realty, and subject to the mortgage: Kirchner v. Miller, 39 N. J. Eq. 355; Adams v. Corriston, 7 Minn. 456; Clark v. Reyburn, 1 Kan. 281. These cases assume that the removal of fixtures, timber, or buildings from the mortgaged premises, while in the possession of the mortgagor, is one of the risks assumed by the mortgagee, and that, although his security is thereby impaired, his only remedy is by injunction to restrain such removal before the act is accomplished: Kircher v. Schalk, 39 N. J. L. 335-339; Wilson v. Maltby, 59 N. Y. 126. When the mortgagor is entitled to possession after foreclosure, and until the expiration of the time for redemption, the purchaser at the foreclosure sale is not entitled to the possession of logs cut on the land after the sale, and cannot bring replevin for them: Berthold v. Holman, 12 Minn. 335; 93 Am. Dec. 233.

Damages for Impairment of Security.-That the mortgagee may maintain an action and recover damages against one, whether the mortgagor in pos

session or a stranger who has injured the mortgaged property and impaired the security by a removal of fixtures or things of value therefrom, is decided in Lavenson v. Standard Soap Co., 80 Cal. 245; 13 Am. St. Rep. 147, and the subject is treated at considerable length in a note appended to that case, at pages 153 to 156. Most of the cases cited in that note, as well as the principal case to which it is appended, maintain that before a mortgagee is entitled to bring an action against persons removing fixtures or things of value from the mortgaged premises, and before he is entitled to recover the damages occasioned thereby, he must first foreclose his mortgage, and ascertain that a deficiency remains due to him. Otherwise he cannot maintain the action: Berthold v. Holman, 12 Minn. 335; 93 Am. Dec. 231; Kennery v. Burgess, 38 Mo. 440; Corbin v. Reed, 43 Iowa, 459. But there is another line of decisions affirming that the mortgagee can maintain an action and recover damages against the mortgagor or a third person for substantial and permanent damage done by him to the mortgaged property, even though in its damaged state or condition it is of sufficient value to satisfy the mortgage debt: Gooding v. Shea, 103 Mass. 360; 4 Am. Rep. 563; King v. Bangs, 120 Mass. 514; Tarbell v. Page, 155 Mass. 256; Byrom v. Chapin, 113 Mass. 308; Dorr v. Dudderar, 88 Ill. 107: Morgan v. Gilbert, 2 Flip. 645; In Byrom v. Chapin, 113 Mass. 308, the court said: "This case must be governed by the decision in Gooding v. Shea, 103 Mass. 360; 4 Am. Rep. 563. The owner of the equity has no more right than a stranger to impair the security of the mortgagee by the removal of buildings or fixtures, thereby causing substantial and permanent injury and depreciation to the mortgaged estate. The right of action in such case is based upon the mort. gagee's interest in the property, and the damages are measured by the extent of injury to that property: Woodruff v. Halsey, 8 Pick. 333; 19 Am. Dec. 329; Page v. Robinson, 10 Cush. 99. It does not depend upon, and the damages are not to be measured by, proof of insufficiency of the remaining security. The mortgagee is not obliged to accept what remains as satisfaction pro tanto of his debt at any valuation whatever. He is entitled to the full benefit of the entire mortgaged estate, for the full payment of his entire debt."

MULLEN v. CITY OF Owosso.

[100 MICHIGAN, 103.]

NEGLIGENCE-WHEN IMPUTED.-The negligence of the driver of a private conveyance in driving over an obstruction in the street is imputable to a person of the age of discretion who voluntarily rides with him, and prevents his recovery for the injuries received.

G. L. Keeler and J. T. McCurdy, for the appellant.

O. Chapman, for the respondent.

104 LONG, J. The plaintiff, a woman about thirty-four years of age, was riding with Mr. Pond in a private carriage drawn by one horse along a public street in the city of Owosso. Overtaking Mr. Sanders, who was driving in the same direction, Mr. Pond attempted to pass him. Sanders

was driving at a rapid rate, and Mr. Pond, in attempting to pass, started his horse rapidly forward. The parties raced for a distance, when Mr. Pond ran over a pile of sand in the highway. His carriage was overturned, and plaintiff thrown out and injured.

The proofs are clear that Mr. Pond knew that a building was being erected by the side of this street, and that a mortar-box and other materials were out in the street, in front of it. He stated that on a former trial he testified that he knew the street was encumbered by such materials, and thought that somebody was liable to get hurt there. Yet, in view of this knowledge, he carelessly drove his horse at the rate of more than six miles an hour in the street, contrary to the ordinances of the city. The court directed the jury: "If you find from the evidence in this case that the plaintiff would not have been injured but for the neglect of the city to give proper warning, then the plaintiff would be entitled to recover, unless you find that Mr. Pond knew of the obstruction to a portion of this street, 105 and heedlessly drove over the obstruction, then he would be guilty of gross negligence, and plaintiff could not recover."

Again the court said: "If the plaintiff in this case voluntarily entered the private conveyance of Mr. Pond, and voluntarily trusted her person and safety in that conveyance to him, by voluntarily entering into the private conveyance of Mr. Pond, she adopted the conveyance, for the time being, as her own, and assumed the risk of the skill and care of the person guiding it. So, if you find that Mr. Pond was negligent in driving fast,. . . . the plaintiff in this case could not recover."

The jury returned a verdict in favor of the defendant.

The only question presented by the brief of plaintiff's counsel is whether the negligence of Mr. Pond is imputable to the plaintiff. This question was settled in the affirmative in Lake Shore etc. R. R. Co. v. Miller, 25 Mich. 274, which was decided by this court in 1872, and has not since been departed from. Counsel claim that some doubt has been cast upon this doctrine by some of the later decisions, and cite Battishill v. Humphreys, 64 Mich. 503. In that case a child three years of age was run over by an engine upon a railroad operated by defendants as receivers. The question was raised whether the negligence of the parents in permitting the child to go upon the track was imputable to the child.