The defendant McGraw, in this case, came into the possession of the land subject to the mortgage. The rights of the holder of the mortgage were therefore paramount to his rights and any attempt on his part to impair the mortgage as a security, was a violation of plaintiff's rights. But the case is not new in its circumstances. The case of Gates v. Joice, 11 Johns. 136, was precisely like the case at bar in principle. That action was brought by the assignee of a judgment against a person for taking down and removing a building from the land upon which the judgment was a lien. The plaintiff's security was thereby impaired. The court in that case sustained the action. The decision in that case was referred to and approved in Lane v. Hitchcock, 14 John. 213, and in Gardner v. Heartt, 3 Denio, 234. Nor is there anything in the case of Peterson v. Clark, 15 John. 205, which conflicts with the principle of these cases. That was an action by a mortgagee in the usual form of an action for waste. The declaration alleged seisin in the plaintiff, upon which the defendant took issue. There was no allegation that the mortgagor was insolvent or the judgment as a security impaired. The only issue to be passed upon was that in relation to the seisin. It is quite clear that upon such an issue the mortgagee must fail. Now this action is not based upon the assumption that the plaintiff's land has been injured, but that his mortgage as a security has been impaired. His damages, therefore, would be limited to the amount of injury to the mortgage, however great the injury to the land might be. It could, therefore, be of no conse-quence, whether the injury occurred before or after forfeiture of the mortgage. The action is clearly maintainable. * * *

Judgment affirmed.

Brady V. Waldron

2 Johnson's Chancery (N. Y.), 148. - 1816. [Reported herein at p. 176.]

Witmer's Appeal

45 Pennsylvania State, 455. - 1863. [Reported herein at p. 263.]

State Savings Bank V. Kercheval

65 Missouri, 682. - 1877. [Reported herein at p. 280.]