incumbrance, $6,000, making, as the total lien, $38,875. The value of the security is shown to have been as follows: On the mortgaged land was a steam mill worth..... Six million five hundred thousand feet of pine timber, at $3. $20,000 13,000 1,964 $34,964 From which it appears the value of the security did not equal the amount of the lien by nearly $4,000. § 680. If a mortgagor is insolvent the mortgagee may sue for an unauthorized injury to the mortgage security. The declaration counts upon damages to the premises and to plaintiff's security, and it is claimed that any reduction of the mortgagee's security gives the right of action. We are of the opinion that, if plaintiff can recover, it must be for an injury to his security, and on the ground that it was inadequate. In Massachusetts the legal title is in the mortgagee, who may sue for an injury affecting the mortgaged estate, though not in possession, and the owner of the equity of redemption has no more right than a stranger to impair the security of a mortgagee by permanent injury and depreciation of the mortgaged estate. It has there been held that the damages are measured by the extent of injury to the property, and do not depend upon proof of the insufficiency of the remaining security; that the mortgagee is not obliged to accept what remains, but is entitled to the full benefit of the entire mortgaged estate for the full payment of his entire debt. Gooding v. Shea, 103 Mass., 360; Byron v. Chapin, 113 id., 308. See, also, Sanders v. Reed, 12 N. H., 558; Smith v. Moore, 11 N. H., 55; 5 N. H., 54; and Hutchins v. King, 1 Wall., 54 (§§ 427-429, supra). But in Kings v. Bangs, 120 Mass., 514, it was held, in an action by the mortgagee against one who had injured the mortgaged property by removal of fixtures, that evidence that the mortgagee, under the power in his mortgage, sold the premises for more than enough to pay his debt and all prior incumbrances, is admissible in mitigation of damages. In Illinois the mortgagee is held to be the owner of the fee, as against the mortgagor or those claiming under him, and may have an injunction to stay waste upon the mortgaged lands. He is entitled to all the rights and remedies which the law gives to an owner. Nelson v. Pinegar, 30 Ill., 473. In New York a mortgage constitutes a lien upon and does not rest title to the land in the mortgagee. This is the law in Michigan, where the title remains in the mortgagor. Wherever such is the relation of mortgagor and mortgagee to the mortgaged property, the rule is that the mortgagee may maintain suit against one who impairs his security, and the damages are limited to the amount of injury to the mortgaged security, however great the injury to the land may be. Van Pelt v. McGraw, 4 Comst., 110. It has been, in some cases, held necessary to show that the mortgagor is insolvent or not personally responsible for the debt. See Gardiner v. Heartt, 3 Denio, 232; Lane v. Hitchcock, 14 Johns., 213; Yates v. Joyce, 11 Johns., 136; Wilson v. Maltby, 59 N. Y., 126; Jones e. Costigan, 12 Wis., 757; Buckout v. Swift, 27 Cal., 436. Upon the general doctrine as stated, where title remains in the mortgagor, see State v. Weston, 17 Wis., 757; Jones v. Costigan, 12 Wis., 757. Jackson v. Turrell, 39 N. J., 329, is a well considered case. It is not necessary to say what the rule would be in Michigan in a suit by a mortgagee, when the mortgagor is personally liable and pecuniarily responsible. In the case at bar the mort gagors are insolvent. One case lays stress upon the intent with which the injury was committed (Gardiner v. Heartt, 3 Denio, 232), which we do not follow. We are not aware of any decision by the supreme court of Michigan, touching the right of a mortgagee to maintain an action for an injury either to the mortgaged premises or to his security. We entertain no doubt that the common law gives a remedy to a mortgagee against one who, by an unauthorized act, has so far injured his security as that damage results. The cases in New York, New Jersey and Wisconsin, where the rights of a mortgagee are the same as in Michigan, are authority for this view. The court, therefore, finds that the plaintiff is entitled to judgment against the defendant for the sum of $1,300. It is also found that defendant had no valid license from the mortgagors, as against the mortgagee, to cut and remove timber from the mortgaged land. The plaintiff is entitled to judgment against the defendant for the sum of $1,300. Judgment will be entered for that amount, with costs. § 681. Execution in favor of creditors of grantor.- Land conveyed by a deed absolute in form, but admitted to be in fact for the security of a debt, is subject to levy of execution in favor of a judgment creditor of the original grantor. Chickering v. Hatch, 3 Sumn., 474. § 682. Upon a bill to redeem a mortgage of a leasehold estate, it appeared that one Cocking, in 1818, leased a lot to Shields for a term of ten years from January 1, 1819, requiring, besides rent, that Shields should build a house, which he did, and giving him the privilege of purchasing the lot at a stated price. Shields mortgaged the house and lot in 1823 to Franks, and in 1825 the interest of Shields was sold by a constable on execution to Van Ness, and a deed was made by the officer to the purchaser. Franks assigned his mortgage to Hyatt, and Shields conveyed to him his equity of redemption. Cocking's heirs, in April, 1826, conveyed to Hyatt the reversion in fee-simple. The levying of the execution, and the sale under it, took place before the assignment of the equity of redemption. Van Ness therefore represented the title growing out of the execution sale and Hyatt all the other interests in the property. It was held that, by the laws of Maryland, the lease, though not recorded, was good for seven years; but that an equity of redemption of a leasehold estate could not be sold under a fieri facias. The bill to redeem was, therefore, dismissed, with costs. (MORSELL, J., dissented.) Van Ness v. Hyatt,* 5 Cr. C. C., 127. § 683. Waste- Use of mortgaged premises.-A state statute provided, in reference to mortgaged premises, that "it is not waste for the person in possession of the property at the time of sale, or entitled to possession afterwards, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used," etc. On the sale of mortgaged premises, the purchaser applied for an injunction to restrain the mortgagor from removing earth and sand, to be used in the manufacture of brick, a use to which the premises were subjected at the time the mortgage was made. The mortgage provided that the mortgagor should do nothing in and about the premises tending to diminish the security. Held, that the removal of the earth did diminish the security; that it was waste at common law; that the parties by their contract had waived the provision of the statute, and that the complainant was entitled to an injunction. Edwards v. Woodbury,* 1 McC., 429. $ 684. Mortgagor's after-acquired title.-A title to the mortgaged land acquired by a mortgagor after making the mortgage inures to the benefit of the mortgagee. Wright v. Shumway, 1 Biss., 23 (§§ 435–439). Where a mortgagor purchases for his own benefit, though in the name of another person, an outstanding title to the mortgaged property, for the purpose of defrauding the mortgagee, equity will require him to hold such title upon the same uses and trusts as are declared in the deed of trust or mortgage. Moore v. Jaeger,* 2 MacArth., 465. § 685. In the absence of a warranty of title, and of false representations on the part of the mortgagor, it is not his duty to perfect his title to the mortgaged land. Thus, if one in actual possession of land, under a contract with the state to buy it and pay for it in annual instalments, mortgages it in good faith, without warranty, he is not bound to make payments to the state after the conveyance of his interest. But his mortgagee would be entitled to make the payments and perfect the title. McWilliams v. Withington, 7 Saw., 205. § 686. Mortgagor estopped by representations.- If an owner of land represents to a creditor that it belongs to another, and induces such creditor to take a mortgage from that person, and to extend the time of payment of the debt, he is estopped to claim the land as against the lien of the mortgage. Parlin v. Stone, 1 McC., 443 (§§ 390-392). § 687. A mortgagee of land has a right to wood, timber and bark cut from the mortgaged premises, whether on them or not; and can maintain an action of trover for such property. Upon the bankruptcy of the mortgagor, such mortgagee, upon giving notice to the assignee or to the marshal, is entitled to the property, and the assignee holds it subject to his claim. In re Bruce,* 16 N. B. R., 318. XIV. MORTGAGEE'S RIGITTS AND LIABILITIES. SUMMARY-Mortgagee in possession under a parol agreement, § 689.— Mortgagee cannot be dispossessed, § 689.- His entry upon part is entry upon whole, §§ 690, 691.— Equitable right of junior mortgagee as against prior mortgagee having other security; homestead, § 692.— In Texas mortgagee cannot recover possession of homestead, § 693. § 688. Under a statute which provides that a mortgagee shall not be entitled to the possession of the mortgaged premises unless the mortgage specifically so provides, a mortgagee in possession under a parol agreement with the mortgagor is entitled to hold possession and collect the rents until his mortgage is paid. Edwards v. Wray, §§ 694-698. § 689. A mortgagee in possession under such a parol agreement is entitled to the rents after the premises have been sold on a junior judgment, although it is provided by statute that during the time allowed for redemption from such sale the owner is entitled to the possession. Such mortgagee has a prior right to rents as against the purchaser at the execution sale. Ibid. § 690. A mortgagee having entered after breach of the condition cannot be dispossessed by the mortgagor so long as the mortgage continues in force. Courts of equity, while relieving against the old doctrine of forfeiture, have, as fully as courts of law, always regarded the legal title to be in the mortgagee until redemption. Brobst v. Brock, §§ 697–705. $ 691. A mortgagee's entry upon any part of a large tract conveyed in mortgage is deemed to be an entry upon the whole tract and a taking possession of the whole, if none of it be in adverse possession. Ibid. § 692. The equitable right of a junior mortgagee to compel a prior mortgagee to resort in the first place to property on which he has an exclusive claim before coming to a part covered by the junior mortgage, cannot be impaired by a subsequent declaration of homestead on the property exclusively covered by the prior mortgage. Abbott v. Powell, § 706. § 693. The provision of the constitution of Texas, prohibiting a forced sale of a homestead, is construed as not only prohibiting a sale of a homestead under a mortgage, but also as preventing the mortgagee's recovering possession of it by ejectment. Lanahan v. Sears, §§ 707, 708. [NOTES.-See $$ 709-715.] EDWARDS v. WRAY. (Circuit Court for Indiana: 12 Federal Reporter, 42-45. 1882.) Opinion by GRESHAM, D. J. STATEMENT OF FACTS.- This is a suit to foreclose a mortgage. In addition to the usual averments the complainant alleges that in September, 1879, and some time before the filing of his bill, by an agreement between the mortgagor and himself, the possession of the mortgaged premises was turned over to him and has been ever since retained by him. He sets out an itemized statement of the rents collected which have been applied towards the payment of the interest on his mortgage debt. His right to so apply a part of these rents is denied by the defendant T. Wiley Hill, who, in his answer, claims that he is entitled to all the rents that have accrued since the 3d day of July, 1880, at which time he bought the mortgaged premises on an execution sale made on a judgment junior to complainant's mortgage. This claim is based upon the provisions of section 1 of an act which went into effect March 31, 1879, relative to the redemption of real estate sold on execution or decree of sale. That section is as follows: "Section 1. Be it enacted by the general assembly of the state of Indiana, that, whenever real estate or any interest therein shall be sold on execution, the sheriff or other officer making the sale shall issue to the purchaser a certificate of purchase. The certificate shall entitle the purchaser, his heirs or assigns, to a deed of conveyance, to be executed by the proper officer, at the expiration of the time allowed for redemption, unless the property sold shall have been previously redeemed. The owner of the property shall be entitled to the possession thereof during the time the same is subject to redemption; but if the same is not redeemed, he shall be liable to the purchaser, his heirs or assigns, for the reasonable rents, profits, or use thereof; provided, if such owner is not the actual occupant of the premises sold, but the same be occupied by a tenant or other person, such tenant or other person shall be liable to the purchaser for the reasonable rent or use and occupation of the premises, and may be treated in all respects as the tenant of the purchaser, who shall, in case the property is redeemed, allow, as a payment upon his judgment, the amount of the rent by him collected." § 694. Mortgagee in possession entitled to collect rents until mortgage debt is paid. Construction of statute. Hill insists that under this section from the time he obtained his certificate of purchase the complainant became liable to him as the occupant of the property. In other words, his position is that the agreement between the mortgagor and the complainant, although made in good faith, must give way to the provisions of the statute. The question, then, is, does the section of the statute quoted apply to the complainant's possession? It is admitted that the complainant is a mortgagee in possession with the consent of the mortgagor, and that, aside from the statute under consideration, he has a right to hold that possession and collect the rents on the property until his mortgage is paid. This is the rule at common law, even where the lien theory of mortgages obtains. Russell. Ely, 2 Black, 575; Witherell v. Wiberg, 4 Saw., 232 (§§ 664666, supra); Phyffe v. Riley, 15 Wend., 248; Hubbell v. Moulson, 54 N. Y., 225; Hennesy v. Farrell, 20 Wis., 42; Dutton v. Warschauer, 21 Cal., 609; Roberts v. Sutherlin, 4 Or., 219. § 695. Parol agreement for possession by mortgagee, valid. In this state there is a statutory provision that "unless a mortgage specifically provide that the mortgagee shall have possession of the mortgaged premises he shall not be entitled to the same." The mortgage in suit did not contain such a provision. Notwithstanding this fact, the parties to this mortgage could enter into a parol agreement that the mortgagee should take possession of the mortgaged premises, and could carry out such an agreement by putting the mortgagee in possession. Parker v. Hubble, 75 Ind., 580. This was in fact done in this case, and when this parol agreement was so executed by the surrender of possession on the part of the mortgagor, the contract between the parties to the mortgage then stood as though it had been specifically provided in the mortgage that the mortgagee should be entitled to the possession of the mortgaged premises. The redemption statute of 1879 was not intended to defeat or abrogate rights acquired under such a contract. Its effect was meant to be limited to sales of property which should be sold independently of any contract pertaining to its use or possession. Its purpose was to furnish a rule which should be applicable to sales of real estate, the dominion over which the judgment debtor or his assigns still held. It does not contemplate an interference with senior rights or equities created prior to the attaching of the judg ment lien that is to be enforced by the sale. It relates to a remedy for the enforcement of judgments, and it does not and could not inhibit a contract relation that might curtail that remedy. It is true that this statute was in force when the agreement in question was made, but, no fraud being charged, the parties to that agreement had the right to enter into it, and the complainant is entitled to be protected in the rights thus secured notwithstanding the statute. Edwards v. Woodbury, 1 McC., 429; 3 Fed. R., 114. Whether this proposition would be true if the lien of the judgment had attached prior to the making of the arrangement between the mortgagor and the mortgagee, need not be decided. The pleadings show that the agreement under which the complainant went into possession of the mortgaged premises was made before the judgment under which Hill derives title became a lien on the real estate. When that lien came into existence it of necessity attached to real estate charged with the burden of the complainant's right of possession. It was a lien only on such an estate in the property in controversy as the judgment debtor at that time held, and the execution sale was made subject to any liens, pledges or rights that he had fastened upon the real estate in favor of any other party. Monticello Hydraulic Co. v. Loughry, 72 Ind., 562. The complainant was in possession by his tenants, and this was notice of his rights. Bank v. Flagg, 3 Barb. Ch., 317; Wright v. Wood, 23 Penn. St., 120; Franz v. Orton, 75 Ill., 100; Dickey v. Lyon, 19 Ia., 544; O'Rourke v. O'Connor, 39 Cal., 442. § 696. Mortgagee in possession under parol agreement with mortgagor has prior right to rents over purchaser at execution sale. The rights of complainant in the mortgaged premises as mortgagee in possession were no more affected by the execution sale than were his rights under his mortgage. They alike remained intact. The same equitable principles that authorize the appointment of a receiver of mortgaged property may be invoked in this case to sustain the arrangement between the mortgagor and mortgagee by which the latter took possession of the premises. The mortgagor turned over the property to the mortgagee in order that the rents might be applied to the payment of interest, but it appears that the interest is greatly in default. It is to be presumed, therefore, that the mortgagor is insolvent or seriously embarrassed, and that the premises are not an adequate security for the debt, and that these facts were considered by the parties when the arrangement was made. This court has uniformly held that under these circumstances a receiver should be appointed to protect the interests of the mortgagee. The arrangement made secured to the mortgagee without the aid of a court just what the court would have given him as against not only the mortgagor but as against all junior lienholders. The purposes of the parties to this agreement were of so equitable a character that they should be effectuated and not defeated. The provisions of the redemption act of 1879 furnish no reason why the court should refuse the appointment of a receiver upon proper showing, and it is equally clear that an amicable arrangement between a mortgagor and mortgagee, which effected at once what a receivership would have indirectly accomplished, should be upheld, although it was made after the statute under consideration took effect. BROBST v. BROCK. (10 Wallace, 519-537. 1870.) ERROR to U. S. Circuit Court, Eastern District of Pennsylvania. STATEMENT OF FACTS.- Michael Brobst owned an undivided one-fourth of a large tract in Pennsylvania, and mortgaged it to Wood, payable April 1, 1821, |