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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: Burk v. Getsinger, 5 N. J. Eq. 391. If works for making brick have been constructed, and claybeds 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 morte gagor 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. 8. 55; Stowell v. Pike, 2 Me. 387; Learilt v. Eastman, 77 Me. 117; Langdon v. Paul, 22 Vt. 205; Harris v. Haynes, 34 Vt. 220; Hagar v. 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. 291. 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. 658. If the mortgages 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 coinmitted before the breach of the condition in the morto 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: Linscolt 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 tres. pass or trover against a third person who buys of the mortgagor in posses. sion 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 mortgageo 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 gen. erally a mortgagee out of possession may maintain an action of trespass against a stranger for an injury to the mortgaged premises: Leavitt v. Eristman, 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 inortgagor is not liable in tres. pass 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 tirewood 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 himn 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 mortgages may maintain replevin against the mortgagor in possession, or a purchaser from him with notice, actual or constructive, of the lien of the mortgage, for timber cut or fixtures or buildings removed from the mortgaged prem. ises, 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 Bevered 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 mortgages 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 mort. gagor, 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 possession 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; Ken. nery v. Burgess, 38 Mo. 440; Corbin v. Reeil, 43 Iowa, 459. But there is another line of decisions affirming that the mortgagee can inaintain 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. Duiderar, 83 II. 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 damares are measured by the ex. tent 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 bis entire debt."
MULLEN v. City Of Owosso.
(100 MICHIGAN, 103.) NEGLIGENCE-WHEN IMPUTED.—The negligence of the driver of a privato
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. 0. 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.
Mr. Justice Morse held that such negligence was not imputable to the child. The other justices expressed no opinion upon that point. In Shippy v. Village of Au Sable, 85 Mich. 280, the question whether the negligence of the parents was imputable to a child three years of age was again presented; and, upon a full hearing, it was the unanimous opinion of the court that such negligence was not imputable to the child. Other cases of like character have been presented to this court, involving that question; and the rule 106 is now established that, when the child brings the action for negligent injuries, the negligence of the parents cannot be imputed to it.
But the present case presents quite a different question, Here a person of the age of discretion voluntarily enters & private conveyance of another to ride, and by the carelessness of that person is injured. The rule laid down in the Miller case, cited above, precludes a recovery. It has been too long settled to be now disturbed. In Schindler v. Milwaukee etc. Ry. Co., 87 Mich. 410, the rule was recognized. It was there said of the Miller case: “This is the general rule, and has been since fc Howed in this state.” The rule was also recognized by this court in Cowan v. Muskegon Ry. Co., 84 Mich. 583.
Judgment is affirmed.
Hooker, J., dissented on the ground that, before the negligence of the driver of a vehicle or carriage of any sort can be imputed to a passenger or person riding in such vehicle, it must be shown that the driver is the agent of the passenger, or under his direction and control. Judge Hooker ac. knowledged that the case of Thorogood v. Bryan, 8 Com. B. 115, sustains the position taken in the majority opinion, but said that that case was dis. regarded in the subsequent case-Rigliy v. Hewitt, 5 Ex. 240-and distinctly overruled in The Bemina, 12 Pro. Div. 58; Mills v. Armstrong, 13 App. Cas. 1-7; and Little v. Hackett, 116 U. S. 366. He contended that the great weight of authority establishes the rule that “in cases like the present the question becomes one of fact; the test of the passenger's responsibility for the negligence of the driver depending upon the passenger's control, or right of control, of the driver, so as to constitute the relation of master and servant between them,” and cited the following cases in support of such rule: Little v. Hackett, 116 U. S. 360; Missouri etc. Ry. Co. v. T'exas Pac. Ry. Co., 41 Fed. Rep. 316; Larkin v. Burlington etc. Ry. Co., 85 Iowa, 492; New York etc. R. R. Co. v. Steinbrenner, 47 N. J. L. 161; 54 Am. Rep. 120; Randolph v. O'Riordon, 155 Mass. 331; Galveston etc. Ry. Co. v. Kutac, 72 Tex. 643; Cahill v. Cincinnati Ry. Co., 92 Ky. 245; Nesbit v. Town of Gar. ner, 75 Iowa, 314; 9 Am. St. Rep. 486; Deun v, Pennsylvania R. R. Co., 129