of frauds." After decisions of similar import in Ren v. Bulkeley,10 in 1779, and Eaton v. Jacques, 11 in 1780, we come, in 1781, to the much cited case of King v. St. Michaels.12 This was a case of pauper settlement. In the course of his opinion Lord Mansfield said: "If the estate on which a pauper resides is substantially his property, that is sufficient, whatever forms of conveyance there may be; and therefore a mortgagor in possession gains a settlement, because the mortgagee, notwithstanding the form, has but a chattel, and the mortgage is only a security. It is an affront to common sense to say the mortgagor is not the real owner."13

STEPHEN, J., in EVANS V. MERRIKEN, 8 Gill. & J. 39 (Md. 1836). By the deed of mortgage, the legal estate becomes vested in the mortgagee, defeasible at law upon the performance of the condition and payment of the money at the time stipulated; but upon default of the mortgagor in the non-payment of the money at that time, it becomes indefeasible at law, and defeasible only in equity, where the mortgage is considered only as a security for the debt, and the mortgagor, notwithstanding his default, will be permitted to redeem. It is true in 2 Burr. 978, Lord Mansfield, in delivering the opinion of the court, says, "a mortgage is a charge upon the land, and whatever would give the money, will carry the estate in the land along with it, to every purpose. The estate in the land is the same thing as the money due upon it. It will be liable to debts; it will go to executors; it will pass by a will, not made and executed with the solemnities required by the statute of frauds. The assignment of the debt, or forgiving it, will draw the land after it as a consequence; nay it would do it, though the debt were forgiven only by parol; for the right of the land would follow, notwithstanding the statute of frauds."

But in Doug. Rep. 22, his lordship at a later period of his judicial life, in deciding that a mortgagee might recover in ejectment (without giving notice to quit) against a tenant claiming under a lease from the mortgagor, granted after the mortgage without the privity of the mortgagee, held the following language, "when the mortgagor is left in possession, the true inference to be drawn. is an agreement that he shall possess the premises at will in the strictest sense, and therefore, no notice is ever given him to quit,

10 Doug. 292.

11 Doug. 455. 12 Doug. 630.

13 These views of Lord Mansfield were not accepted by the English courts, and by the law of England today the mortgagee has, after default, the absolute legal title, and the mortgagor but an equitable interest. See Maitland, Equity, 281. And see Lord Redesdale's strictures o Lord Mansfield in Shannon v. Bradstreet, 1 Sch. & Lef. 52, 65. Other decisions of Lord Mansfield himself greatly qualified these declarations. See Keech v. Hall, 1 Doug. 21; Moss v. Gallimore, 1 Doug. 279.

and he is not even entitled to reap the crop, as other tenants at will are, because all is liable to the debt, on payment of which the mortgagee's title ceases. The mortgagor has no power, express or implied, to let leases not subject to every circumstance of the mortgage." And the Supreme Court of the United States, in speaking upon the subject of the title passed by the deed of mortgage, and the interest acquired by the mortgagee, in the thing mortgaged, express themselves in the following terms, "it is true that in discussions in courts of equity, a mortgage is sometimes called a lien for a debt; and so it certainly is, and something more. It is a transfer of the property itself, as security for the debt. This must be admitted to be true at law, and it is equally true in equity, for in this respect equity follows the law.

"It does not consider the estate of the mortgagee as defeated and reduced to a mere lien, but it treats it as a trust estate, and according to the intention of the parties as a qualified estate and security. When the debt is discharged there is a resulting trust for the mortgagor. It is therefore only in a loose and general sense that it is sometimes called a lien, and then only by way of contrast to an estate absolute and indefeasible."14 From these decisions, it results that the mortgagee must be considered as having an estate or interest in the subject matter of the mortgage, not absolute it is true, because such an estate is not imported by the terms of the mortgage deed, but an interest commensurate with the object contemplated to be attained by it, as a security for the payment of the debt due from the mortgagor to the mortgagee. From these general views and considerations, relative to the respective rights of the parties to the instrument of mortgage, we are led to the consideration of the question arising in this case, and involved in the decision of this controversy. And that question is, whether the issue of a female slave, herself, the subject of the mortgage, born after the title of the mortgagee has become absolute at law, and during the possession of the mortgagor, is liable for the payment of the mortgage debt. For it must be borne in mind that the question is not whether the mortgagee is entitled to hold the issue as his own property in absolute right, but as security for the payment of his debt only. Upon the fullest consideration we have been able to bestow upon the subject, aided by all the lights and information with which we have been furnished, by an examination of the decisions of the courts of our sister states upon similar subjects, we have come to the conclusion that right and justice require that the issue so born should be liable, and that neither the principles of law nor equity forbid it. In the language of Lord Mansfield, before adverted to, when speak14 Quotation from Conard v. Atlantic Ins. Co., 1 Peters (U. S.) 386, 441.

ing of the growing crop, when possession is taken by the mortgagee, we think, "all is liable to the debt, on payment of which the mortgagee's title ceases."15

AGNEW, J., in TRYON V. MUNSON, 77 Pa. St. 250 (1874). The mortgage passes to the mortgagee the title and right of possession to hold till payment shall be made. He may, therefore, enter at pleasure, and take actual possession-use the land and reap its profits. Now this title or lawful right to possess, and actual pedis possessio, are not ideal or contemplative merely, but are real and tangible. True, the right is conditional, and will cease on payment of the debt; but until the condition is performed, the title and possession are as substantial and real as though they were absolute. The evidence of this is that the mortgagee may dispossess and hold out the mortgagor until he performs the condition, or until the perception of the profits reaches the same result. Thus we perceive an interest or estate in the land itself, capable of enjoyment, and enabling the mortgagor to grasp and hold it actually, and not a mere lien or potentiality, to follow it by legal process and condemn it for payment. The land passes to the mortgagee by the act of the party himself, and needs no legal remedy to enforce the right. But a lien vests no estate, and is a mere incident of the debt, to be enforced by a remedy at law, which may be limited.

STORRS, J., in GOODMAN V. WHITE, 26 Conn. 316 (1857). After the delivery of the first mortgage deed the legal title to the land conveyed was in the first mortgagee. An equitable right, an equity of redemption, was all that remained in the former owner, and all that he could mortgage to a third person. It is true that a second mortgage purports to be a conveyance of the land itself, and as between the parties to the instrument it is such; and whenever the estate of the first mortgagee is divested the second mortgage will operate fully as a conveyance of the land. But so long as the first mortgage is outstanding, the second mortgagee receives only a transfer or assignment of the mortgagor's equity or equitable right.16

SANDERS v. REED.

SUPREME COURT OF NEW HAMPSHIRE, 1842.

12 N. H. 558.

Trespass, for breaking the plaintiff's close, and cutting certain pine trees; submitted upon a statement of facts.

On the 16th day of September, 1839, Norris Colburn, being in

15 Compare Duval v. Becker, 81 Md. 537.

16 Compare Chamberlain v. Thompson, 10 Conn. 243; Bates v. Coe, 10 Conn. 280; Clinton v. Westbrook, 38 Conn. 9.

possession of the premises, conveyed the same to Stephen G. Tyler, and on the same day took a mortgage back from Tyler, which mortgage, on the 21st day of November, 1839, was duly assigned to the plaintiffs. Tyler remained in the actual possession of the premises, from the date of his mortgage deed until the 3d day of March, 1841, when the plaintiffs took possession. The trees were cut by the defendant, under a license from Tyler, between the first day of January, 1841, and the first day of March, of the same year.

On the 17th day of May, 1837, Colburn, being the owner of this land, mortgaged it, with other real estate, to Susan Robeson, to secure the payment of certain notes signed by him and Milton Chaplin. On the 16th day of April, 1841, Chaplin paid the notes to Mrs. Robeson, and they were delivered to him, but the mortgage deed still remains in her hands, undischarged. The notes were joint and several, but as between Colburn and Chaplin they were the proper debts of Colburn. The payments were made by Chaplin, with the avails of the sale of that portion of the lands mortgaged to Mrs. Robeson not included in the mortgage to the plaintiffs, excepting about two hundred dollars, paid from his own money. This last sum is secured by an attachment of the real estate of Colburn.

Colburn occupied the land until the date of his deed to Tyler, and Tyler occupied until the 3d day of March, 1841, when the plaintiffs took possession. Colburn and Tyler, during the time of their occupancy, dealt with the premises as their own, by cutting timber, manufacturing the same, and selling, without let, hindrance, or molestation, either from the mortgagee or the assignees.

Mrs. Robeson lived thirty miles from the premises, and the plaintiffs live fifteen miles from the same, and no evidence exists that either of them had any knowledge of the manner the mortgagors were dealing with the premises, nor does it appear that they attempted to ascertain.

PARKER, C. J. There is a principle in equity, that a surety is entitled to the benefit of any security which the creditor may have taken from the principal.

Whether Chaplin could have availed himself of this principle, and have held under the mortgage to Mrs. Robeson, is a question which it does not seem necessary to settle in this case. He paid the notes and discharged the debt, without obtaining the mortgage, and without making any claim to the benefit of it, so far as appears from this case. For the balance which he paid, he has made an attachment, and is secured. There is no reason for thrusting an interest upon him which he has never claimed.

In fact, it may admit of doubt whether he would be entitled to

the benefit of such a principle against Tyler, a bona fide purchaser, or against the plaintiffs, as assignees of Tyler's mortgage, unless they can be made chargeable with notice that Chaplin was a surety, and therefore took subject to his rights as such. The defendant is in no way connected with Chaplin, nor have any rights of the latter been urged in the argument as sustaining the defense.

It is settled that a mortgagee may maintain trespass against a mortgagor for cutting timber upon the land, unless his assent is shown, or is fairly to be deduced from the circumstances of the case. Smith v. Moore (11 N. H. Rep. 551); 5 N. H. Rep. 54, Pettengill v. Evans. There is no evidence of assent in this case, and the plaintiffs' right of action would be clear, had they held the first mortgage upon the land at the time.

But it is contended that the mortgage to Mrs. Robeson was in force, as a valid title to the land, at the time when the timber was cut; and that if there was any right of action for the cutting, it was in her, and not in the plaintiffs; or, at least, that by reason of that mortgage, and the actual possession of the defendant, the plaintiffs, who were second mortgagees, had neither the actual nor constructive possession, and cannot therefore maintain this action. We are of opinion that this objection cannot avail.

A mortgage (as was stated in the case Smith v. Moore) is regarded as a mere security for the debt, or as passing the legal estate, whichever may be necessary for the preservation of the rights of the mortgagee. The mortgagee has the legal estate for the purpose of all lawful protection of his interests.

Tested by this rule, Mrs. Robeson is not in this case to be regarded as having the legal estate, at the time when this timber was cut, notwithstanding her mortgage was then in existence, because that is not necessary, in order to the protection of her interests. Her mortgage has been satisfied; and, so far as appears, she made no claim on account of this act, as injurious to her. She has no interest to be protected, and no reason to make any objection, nor can she now maintain any action. There is no fair purpose to be answered by considering the legal estate in her, as the result would only be to defeat a right of action which would otherwise lawfully exist in the plaintiffs, and this without any benefit to her.

Tyler, who made the second mortgage, had no more right to do acts of waste against the second mortgagee, or his assignee, than he had as against the first. Each mortgagee, for the purpose of protecting his rights, is to be regarded, as against the mortgagor, as holding the legal estate. Any act of waste, without the assent of either, may be regarded as injurious to both. The paramount right of action in such case may be regarded as in the first mortgagee, so long as the first mortgage exists; and it may be supposed