116. The mortgagor is owner of the mortgaged premises, as to all persons except the mortgagee.
As stated in the black-letter text, the mortgagor is owner of the estate, as to all persons except the mortgagee.108 The mortgagor or his assignees do not hold adversely to the mortgagee,109 and are estopped to deny the validity of the mortgage.110 The mortgagor may disseise the mortgagee by repudiating the mortgage, and hold adversely from that time.111 A disseisin of the mortgagor is a disseisin of the mortgagee also.112 All improvements made by the mortgagor inure to the benefit of the mortgagee.113 The mortgagor must pay taxes on the mortgaged land,114 and he will be enjoined from committing any waste which would impair the mortgage security, such as cutting timber or removing buildings.115 Such an injunction may be obtained by a surety of the mortgagor.116 The same remedy is provided against the grantees of the mortgagor.117 A mortgagor in possession is entitled to reasonable esto108 Turner Coal Co. v. Glover, 101 Ala. 289, 13 South. 478. The mortgagor may sue for injuries to the mortgaged premises, whether In possession or not. Frankenthal v. Mayer, 54 111. App. 160; Heitkamp v. Granite Co., 59 Mo. App. 244; At wood v. Pulp Co., 85 Me. 379, 27 Atl. 259.
109 Wright v. Sperry, 25 Wis. 617; Seeley v. Manning, 37 Wis. 574; Doyle v. Mellen, 15 R. I. 523, 8 Atl. 709.
110 Skelton v. Scott, 18 Hun (N. Y.) 375; Fisher v. Mllmine, 94 111. 32S; Kerngood v. Davis, 21 S. C. 183.
111 Benton Co. v. Czarlinsky, 101 Mo. 275, 14 S. W. 114; Jamison v. Perry, 38 Iowa, 14. Contra, Hunt v. Hunt, 14 Pick. (Mass.) 374.
112 Poignand v. Smith, 8 Pick. (Mass.) 272.
113 Ivy v. Yancey, 129 Mo. 501, 31 S. W. 937. And see Malone v. Roy, 107 Cal. 518, 40 Pac. 1040.
114 Mann v. Mann, 49 111. App. 472; Mutual Life Ins. Co. of New York v. Newell, 78 Hun, 293, 28 N. Y. Supp. 913. Cf. Wood v. Armour, 88 Wis. 488, 60 N. W. 791; Raymond v. Palmer, 47 La. Ann. 786, 17 South. 312.
115 Fairbank v. Cudworth, 33 Wis. 358; Scott v. Webster, 50 Wis. 53, 6 N. W. 363; Dorr v. Dudderar, 88 111. 107; Verner v. Betz, 46 N. J. Eq. 256, 19 Atl. 206; Adams v. Corriston, 7 Minn. 456 (Gil. 365). And see, as to the abandonment of an easement, Duval v. Becker, 81 Md. 537, 32 Atl. 308.
116 Johnson v. White, 11 Barb. (N. Y.) 194.
117 Coker v. Whitlock, 54 Ala. I80.
Vers,118 and the mortgagee has no claim on the crops raised by him.119 He is not, however, entitled to emblements, as when the mortgagee, being entitled to possession, enters on the mortgagor before harvest.120 A tenant of the mortgagor under a lease executed subsequently to the mortgage is in the same position, and, when ejected by the mortgagee, is not entitled to the crops planted by him.121
117. The mortgagee is entitled to possession, unless it is otherwise provided:
(a) By statute, as in many states.
(b) By agreement of the parties, which may be either:
(1) Express, or
The mortgagor is entitled to possession against every one except the mortgagee and those claiming under him.122 But at common law the mortgagee may take possession at any time.123 Now, however, the mortgagor usually remains in possession; at least, until breach of condition. This is due to statutory enactments in many states.124 And where there is no statute it is usually provided in
118 Hapgood v. Blood, 11 Gray (Mass.) 400; Wright v. Lake, 30 Vt 206; Jud-klns v. Woodman, 81 Me. 351, 17 Atl. 298.
119 Woodward v. Pickett, 8 Gray (Mass.) 617; Allen v. Elderkin, 62 Wis. 627, 22 N. W. 842; Tobey v. Reed, 9 Conn. 216. But see Coor v. Smith, 101 N. C. 261, 7 S. E. 669.
120 Downard v. Groff, 40 Iowa, 597; Glllett v. Balcom, 6 Barb. (N. Y.) 371; Gilman v. Wills, 66 Me. 273.
121 Jones v. Thomas, 8 Blackf. (Ind.) 428.
122 Huckins v. Straw, 34 Me. 166; Stinson y. Ross, 51 Me. 556; Ellison v. Daniels, 11 N. H. 274; Doe v. Mcloskey, 1 Ala, 708; Bartlett v. Borden, 13 Bush (Ky.) 45.
123 Smith v. Shuler, 12 Serg. & R. (Pa.) 240; Youngman v. Railroad Co., 65 Pa. St. 278; Barrett v. Hinckley, 124 111. 32, 14 N. E. 863; Mershon v. Castree (N. J. Sup.) 31 Atl. 602. And see Springer v. Lehman, 50 111. App. 139; Brundage v. Association, 11 Wash. St 277, 39 Pac. 666. Cf., however, Armour Pack. Co. v. Wolff, 59 Mo. App. 665.
124 See 1 Stim. Am. St. Law, §§ 1882, 1883. And see Michigan Trust Co. v. Lansing Lumber Co., 103 Mich. 392, 61 N. W. 668; Cullen v. Trust Co., 60 Minn. 6, 61 N. W. 818.
§ 118) the mortgage that the mortgagor shall retain the possession. The agreement as to possession may be contained in a separate instrument. The intention of the parties that the mortgagor shall retain possession may often be implied from the terms of the mortgage; for instance, where there is provision that the mortgagor shall cultivate the farm mortgaged, and give one-half the crops to the mortgagee, to be applied in payment of the debt.125 But by remaining in possession after the execution of the mortgage the mortgagor does not acquire a right to continue in possession.126 When the mortgagor is rightfully in possession, he may bring any possessory action for the protection of the estate.127 He need not pay rent to the mortgagee, even in states where the latter is considered the owner of the legal title.128
118. The mortgagor and the mortgagee each have an insurable interest in the mortgaged premises.
Both the mortgagor and the mortgagee have an insurable interest in the mortgaged premises. The mortgagor may insure them to their full value.129 His insurable interest continues, after a sale of his equity of redemption on execution, until his right to redeem from such sale is barred.130 If he has assigned the equity of redemption, and his grantee has assumed the mortgage note, he still has an insurable interest, since he remains liable on the mortgage note as a surety.131 A covenant is usually inserted in the mortgage that the mortgagor shall keep the premises insured for the benefit of the mortgagee. In such case, if the mortgagor should insure in his own name, the mortgagee has a lien on the insurance money,132 but not unless there is such covenant.133 When the mortgagor insures for the benefit of the mortgagee, anything which makes the policy void as to the mortgagor makes it void as to the mortgagee, unless there be a provision in the policy to the contrary.134 The mortgagor cannot bind the mortgagee, for whose benefit he has taken insurance, by a release or adjustment.135 In case of a loss under such a policy, the mortgagee must apply the insurance money to the mortgage debt, if it be due.136 If it is not due, such application cannot be made without the consent of the mortgagor.137 A provision in the policy of insurance forbidding alienation by the owner is not broken by a mortgage of the premises until the mortgage is foreclosed.138 Such a mortgage is, however, a breach of a covenant against change of ownership.139