When the law of 1843 was passed, the common-law doctrine of mortgages had become so far modified by the rules of equity that the last innovation was almost a corollary of former ones. Where a mortgagee's estate had been moulded into a mere security for a personal claim, and the estate in land passed by a parol transfer, and became personalty, the remedy by ejectment became incongruous. It must in many cases be brought in the name of a party having no interest of his own, or by one who traced his title without conforming to the rules of the statute of frauds, which requires estates to be transferred more formally. Where the estate in fee was regarded as belonging to the mortgagee, the possession belonged with it. When the fee was no longer regarded as passing, the possessory right became anomalous. It was an incident which had become severed from its principal, and which led to serious complications in settling the equities of foreclosure and redemption. The act of 1843 was the last thing needed to harmonize the law, and to place mortgages in fact, as they had long been in theory, in the condition of mere securities and chattel interests.

We are aware that in some states the courts have given a similar statute a construction which is absolutely literal, and maintains the right of possession, while forbidding its legal enforcement. We can not regard this as in harmony with the general rules of law. If the mortgagee in possession can insist on retaining it, his right must depend upon his contract, and, as already suggested, should be capable of enforcement. There can be no interest in lands which can not be enforced somewhere. And we can not imagine that the legislature would have taken pains to introduce, as a new and radical change, a measure that could at any time be rendered nugatory by an entry without force.

The decision in Mundy v. Monroe is not only to be respected as a precedent, but is in our view in full accordance with the purposes of the statute.

We think the court erred in rendering judgment for defendant on the finding.

The judgment must be reversed, and judgment entered for plaintiff, that he recover possession, with costs of both courts, and that the record be remanded, that defendant may have the benefit of any statutory application for a new trial to which he may become entitled.

The other Justices concurred.9

CAMPBELL, J., in HAZELTINE V. GRANGER, 44 Mich. 503 (1880). The statute [denying ejectment to the mortgagee] does not say

9 See also, Johnson v. Sherman, 15 Cal. 287; Lewis v. Hamilton, 26 Colo. 263; Rogers v. Benton, 39 Minn. 39; Russell v. Akeley Lumber Co., 45 Minn. 376. See also, 8 Col. L. Rev. 486.

In Byers v. Byers, 65 Mich. 598, Campbell, J., says: "If the mortgagor or owner of the fee chooses to put him in, the tenancy is at least

that no ejectment shall lie unless there is an agreement to that effect, but that it shall not lie at all. Every mortgage made in common law form contains words whereby, if applied as they read, possession would belong to the mortgagee and his title would become absolute by default. The whole aim of equity was to arrest this forfeiture and not to allow the language of a mortgage to have any force against the equity of redemption. The statute is a further step in the same direction for the protection of mortgagors against agreements which, as literally drawn and as theretofore expounded, were deemed dangerous, and against public policy. The language of this mortgage expressly granting rents and profits on default is no stronger than the previous words of grant, and is really narrowed. It was no doubt intended to go further and to evade the statute. If it had contained an agreement that ejectment should lie, it could not very well be enforced against the clause of the statute prohibiting it. It can have no greater force in enlarging the jurisdiction of equity to appoint receivers, which we held in Wagar v. Stone, had been abolished.10

as good as a tenancy at will, and can not be destroyed without notice." In California it seems settled that under such circumstances the mortgagee may retain possession until he is paid. Spect v. Spect, 88 Cal. 437. 10 Cf. Michigan Trust Co. v. Lansing Lumber Co., 103 Mich. 392; Guy v. Ide, 6 Cal. 99; American Investment Co. v. Farrar, 87 Iowa 437; Seckler v. Delfs, 25 Kans. 159.

"Our statute declares that 'a mortgage of real property is not to be deemed a conveyance, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure.' Gen. Stat. 1878, chap. 75, § 29. In numerous decisions of this court, this statute has been recognized as changing the common-law relations and rights of mortgagors and mortgagees. The mortgagee is no longer entitled to the possession of the mortgaged premises before foreclosure by reason of his having any title or estate in the land. The mortgagor, having the legal title, may without doubt remain in possession until his title is divested, unless, in the application of the established principles of equity, and consistently with the legal title remaining in the mortgagor, the court shall find it necessary to lay its hand upon the property for the protection of the equitable rights of the mortgagee. The exercise of this power by courts of equity in the past was not based upon the ground that the legal title had passed from the mortgagor to the mortgagee, but upon the equitable rights of the mortgagee to have his security preserved so that it should be adequate for the satisfaction of the mortgage debt. Indeed, this power was exercised in favor of those who had no legal title, as in the case of junior mortgagees, and of securities given by the deposit of title-deeds. Berney v. Sewell, 1 Jac. & W. 647; Bryan v. Cormick, 1 Cox 422; Meaden v. Sealey, 6 Hare 620; Holmes v. Bell, 2 Beav. 298; High, Rec., §§ 640, 658, 682; Adams, Eq. 125. The jurisdiction of equity in the appointment of receivers, long exercised upon grounds peculiar to courts of equity, is not to be deemed to have been taken away by the statute unless that is its necessary effect, or at least its obvious purpose. Such is not the obvious purpose or necessary effect of this statute." Dickinson, J., in Lowell v. Doe, 44 Minn. 144, 146.

"We are aware that the Supreme Court of California, in the case

ALBERT, C. J., in FELINO V. NEWCOMB LUMBER Co., 64 Neb. 335 (1902). The only statutory regulation on the subject in this state is that to be found in section 55, chapter 73, Compiled Statutes, which is as follows: "In the absence of stipulations to the contrary, the mortgagor of real estate retains the legal title and right of possession thereof." This provision leaves it competent for the parties to a mortgage to stipulate for the investiture of the mortgagee with the legal title and right of possession, which carries with it the right to the rents and profits.

EDITORIAL NOTE-RIGHTS Of the MortgAGEE AGAINST A TENANT OF THE MORTGAGOR.

If the mortgagee has the right to recover the possession from the mortgagor, he has the same right as against a tenant of the mortgagor holding under a lease executed subsequent to the execution of the mortgage, though the mortgagor was in possession when he made the lease. Keech v. Hall, 1 Doug. 21; American Freehold Land Mortgage Co. v. Turner, 95 Ala. 272; Russum v. Wanser, 53 Md. 92. But, as against a tenant whose lease antedates the mortgage, he stands in the position of an assignee of the reversion and can not evict the tenant. American Mortgage Co. v. Turner, supra. On the other hand, in the latter case, the mortgagee, being an assignee of the reversion, can compel the lessee to pay to him the rent accruing since the date of the mortgage, which is due at the time of the mortgagee's demand and has not been already paid to the mortgagor, and all rent thereafter becoming due, unless, perhaps, it has been paid to the mortgagor in advance before the mortgagee's deof Guy v. Ide, 6 Cal. 99, held that, under a statute precisely like ours, it was not a proper practice to appoint receivers pending a foreclosure suit. "The learned judge who rendered the opinion in that case says: 'Our statute forbids a mortgagee from recovering the mortgaged estate, and confines his remedy to a foreclosure. The same reason does not, therefore, exist, as by the English rule for appointing a receiver to collect the rents and profits pending the litigation.' This reasoning is, to our minds, incomprehensible. The argument is, 'Our law, having forbid the mortgagee to bring ejectment for the property mortgaged, it therefore becomes the duty of equity courts to deny him all security to be derived from the rents and profits, and all opportunity of protecting the property during litigation.' If it be taken for granted that it was the object of our legislature, in framing this part of the practice act, to discourage mortgages, and to render such securities uncertain and comparatively valueless, then we could understand this reasoning. But if the intention was merely to simplify proceedings in courts of justice and prevent multiplicity of suits, then we can not understand or appreciate the force of this argument.

"The legislature having forbid the mortgagee pursuing the commonlaw remedy of ejectment, would, it appears to us, be rather a reason for a more liberal exercise of the chancellor's powers to protect the security, he has for his debt." Batty, J., in Hyman v. Kelly, 1 Nevada 179.

mand. Tiffany, Real Property, § 521; Moss v. Gallimore, 1 Doug. 279; King v. Housatonic R. Co., 45 Conn. 226; Teal v. Walker, 111 U. S. 242; De Nichols v. Saunders, L. R. 5 C. P. 589; Stone v. Patterson, 19 Pick. (Mass.) 476. But, where the mortgage precedes the lease, the mortgage can not be called an assignment of the reversion and consequently, there being no privity of estate or contract between them, the mortgagee can not compel the lessee to pay rent to him. Teal v. Walker, 111 U. S. 242; Kimball v. Lockwood, 6 R. I. 138. Such a lessee may, however, in order to avoid eviction, ut supra, attorn to the mortgagee and such attornment is a defense. to the mortgagor's claim for rent subsequently accruing. Kimball v. Lockwood, supra; Jones v. Clark, 20 Johns. (N. Y.) 51. As to whether such attornment creates a new tenancy between the lessee and the mortgagee for the unexpired term of the old lease, see Gartside v. Outlay, 58 Ill. 210.

As long as the mortgagor is permitted to remain in possession, he receives the rents and profits of the land as owner. Accordingly he can not be made to account to the mortgagee for rent received by him from a tenant of the mortgaged land. Teal v. Walker, supra. It has even been so held as to rent which, by reason of notice to the tenant, was payable to the mortgagee. Ex parte Wilson, 2 Ves. & B. 252. In such a case the mortgagee's remedy is against the tenant, whose obligation to the mortgagee is not discharged by payment to the mortgagor. Watford v. Oates, 57 Ala. 290.

If the mortgagee has no right to recover possession from the mortgagor, he, of course, has no such right against any tenant of the mortgagor, nor can he compel the lessee to pay rent to him, whether the lease was prior or subsequent to the mortgage. Teal v. Walker, supra; Hogsett v. Ellis, 17 Mich. 351. Nor is an attornment of the tenant to the mortgagee valid. Hogsett v. Ellis, supra; Mills v. Heaton, 52 Iowa 215; Russell v. Ely, 2 Black (U. S.) 575. After foreclosure, however, the position of the purchaser with reference to a tenant of the mortgagor would seem to be substantially the same as that of a mortgagee who is entitled to possession as against the mortgagor, ut supra; Simers v. Saltus, 3 Denio (N. Y.) 214; Batterman v. Albright, 122 N. Y. 484.

In those states where there is a statutory right of redemption after foreclosure sale, it is usually held that the purchaser acquires no title and no right of possession, until the expiration of the period allowed for such redemption. See Jones Mortgages, § 1661. But see Jones v. Thomas, 8 Blackf. (Ind.) 428.

The mortgagee in possession is held to an accounting under rules so strict as to make the possession a doubtful advantage, See post, Chap. VIII.

SECTION 2.-THE MORTGAGEE'S LEGAL REMEDIES FOR INJURY TO THE MORTGAGED PREMISES.

GOODING v. SHEA.

SUPREME COURT OF MASSACHUSETTS, 1869.
103 Mass. 360.

Tort. The first count in the declaration alleged that the defendant forcibly entered the plaintiff's close, being the dwelling house numbered 8 on Brookline Street in Boston, tore out, took and carried away certain fixtures in said dwelling-house, and converted them to his own use. The second count alleged that Hiram Curtis was the owner of said dwelling-house, "subject to two mortgages, one of $5,000 and the other of $1,000, and interest on the same, and the said Curtis conveyed the same to the plaintiff, subject to said mortgages, to secure the payment of $3,000 and interest, before that time loaned and advanced to said Curtis by the plaintiff, and the defendant afterwards forcibly entered said dwelling-house and tore out, took and carried away" certain fixtures "in said dwelling-house and converted the same to his own use, by means whereof the plaintiff's said security for his said loan was greatly lessened and destroyed." The third and fourth counts were like the first and second, except that "dwelling-house numbered 9" was substituted for dwelling-house numbered 8." Writ dated August 27, 1868.

At the trial in the superior court, before Morton, J., without a jury, the following facts appeared: Curtis, being owner of both said houses, on September 16, 1867, mortgaged them to the Mechanics' Savings Bank of Lowell, each by a separate deed, and each to secure the payment of $5000 in six months from date; on February 7, 1868, he mortgaged them to Mary A. Lewis, each by a separate deed, and each to secure the payment of $1000 in four months from date; and on April 18, 1868, he mortgaged them to the plaintiff, each by a separate deed, and each to secure the payment of $3000. Each of these six mortgages contained a provision that until breach of condition the mortgagee should have no right to take possession. On June 20, 1868, the defendant entered the premises and tore away and removed water pipes and other fixtures attached to the realty; at which time the premises were in the possession of the mortgagor, and there had been no breach of the condition in the mortgages to the plaintiff. On July 11, 1868, the plaintiff took an assignment from Mary A. Lewis of the two mortgages to her; on July 30, 1868, entered to foreclose; and on August 28, 1868, sold the houses under powers of sale contained in the said two mortgages, bought them in himself for $2,000 each, and had subsequently con