This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
46. Ensign v. Colburn, 11 Paige (N. Y.) 503; Emmons v. Hinder-er, 24 N. J. Eq. 39. See Scott v. Webster, 50 Wis. 53, 6 N. W. 363.
47. Lavenson v. Standard Soap Co., 80 Cal. 245, 13 Am. St. Rep.
147 note, 22 Pac. 184; Delano v. Smith, 206 Mass. 365, 30 L. R. A. (N. S.) 474, 92 N. E. 500; Webber v. Ramsey, 100 Mich. 58, 43 Am. St. Rep. 429, note, 58 N. W. 625; Jackson v. Turrell, 39 N J. L. 329; Van Pelt v. McGraw, 4 N. Y. 110; Allison v. McCune, 13 Ohio, 726, 45 Am. Dec. 605; Atkinson v. Hewett, 63 Wis. 396, 23 N. W. 889. In Stewart v. Fink-lestone, 206 Mass. 28, 92 N. E. 37, the mortgagee was regarded as entitled to assert a violation of a building restriction by a neighboring owner.
48. Moisant v. McPhee, 92 Cal 76, 28 Pac. 46; Banton v. Shorey, 77 Me. 48; Webber v. Ramsey, 100 Mich. 58, 43 Am. St. Rep. 429, 58 N. W. 625; Jackson v. Turrell, 39 N. J. L. 329; Verner v. Betz, 46 N. J. Eq. 256, 7 L. R. A. 630, 19 Am. St. Rep. 387, 19 Atl. 206; Wilson v. Maltby, 59 N. Y. 126; Smith v. Altick, 24 Ohio St. 369. In Howe v. Wadsworth, 59 N. H. 397, the mortgagee's right of action in trover for lumber severed and sold by the mortgagor, as against the purchaser of the lumber, was held to be unaffected tence of a deficiency on foreclosure,49 a rule calculated to affect the mortgagee adversely by compelling him to defer his action for damages until after foreclosure. The cases do not, however, usually suggest such a restriction upon the right of recovery. Indeed in one state, in which the legal title is in the mortgagee, the mortgagee's right of action for acts of waste upon the premises has been regarded as independent of the sufficiency of the security, on the theory that, until the whole debt is paid, the mortgagee has a right to the whole security pledged and is consequently entitled to full redress for the deprivation of any part thereof.50 Elsewhere his right of recovery has been held to be restricted to the amount of injury which actually accrues to him as a result of such acts.51
In perhaps two jurisdictions the mortgagee has been held to be entitled, in a proceeding to foreclose, to an accounting for waste by the mortgagor or his transferee.52
In the states where the mortgagee has the legal title, accompanied by the right of possession, he has, perhaps more usually, the remedies incident to such title or right. He may, it has been held, recover in trespass quare clausum fregit against one injuring the by the purchaser's lack of notice of the mortgage. And see Searle v. Sawyer, 127 Mass. 491, 34 Am. Rep. 425.
49. Taylor v. McConnell, 53 Mich. 587, 19 N. W. 196; Laven-son v. Standard Soap Co., 80 Cal. 245, 13 Am. St. Rep. 147, 22 Pac. 184. And see Lane v. Hitchcock, 14 Johns. (N. Y.) 213; Gardner v. Heartt, 3 Denio (N. Y.) 232. Contra, Arnold v. Brood, 15 Colo. App. 389, 62 Pac. 577.
50. Byrom v. Chapin, 113 Mass. 308; Gooding v. Shea, 103 Mass. 360, 4 Am. Rep. 563; Delano v.
Smith, 206 Mass. 365, 30 L. R. A. (N. S.) 474, 92 N. E. 500. See Leavitt v. Eastman, 77 Me. 117. But in King v. Bangs, 120 Mass. 514, the fact that the premises were sold under the mortgage for sufficient to pay the debt was held to be admissible in mitigation of damages.
51. Schalk v. Kingsley, 42 N. J. L. 32; Van Pelt v. McGraw, 4 N. Y. 110.
52. Tate v. Field, 56 N. J. Eq. 35, 37 Atl. 440; Scott v. Webster. 50 Wis. 53, 6 N. W. 363.
Land;53 and when timber or fixtures are removed from the land, his. title thereto is not affected by the wrongful severance,54 and he may recover their value in an action of trover or trespass de bonis asportatis from the person, whether the owner of the land or another, who committed the wrong,55 or he may recover the articles themselves in replevin.56 In some states, however, although the legal title to the land is in the mortgagee for certain limited purposes, his title is regarded as divested by the severance, so that he cannot assert any rights in the things severed.57 In those states in which the lien theory of a mortgage prevails, he can assert no claim of title to the things severed,58 but in two or three states the mortgagee has been regarded as entitled to assert his lien as against a fixture or other article wrongfully severed.59
53. Stowell v. Pike, 2 Me. 387; Smith v. Goodwin, 2 Me. 173; Leavitt v. Eastman, 77 Me. 117; Sanders v. Read, 12 N. H. 558; Harris v. Haynes, 34 Vt. 220. Compare Gooding v. Shea, 103 Mass. 360. As to recovery for a trespass prior to entry by the mortgagee, see Ocean Accident & Guarantee Corp. v. Ilford Gas Co. (1905) 2 K. B. 493.
54. Mosher v. Vehue, 77 Me. 169; Hutchins v. King, 1 Wall. (U. S.) 53, 17 L. Ed. 544.
55. De Lacy v. Tillman, 83 Ala. 155, 3 So. 294; Frothingham v. McKusick, 24 Me. 403; Searle v. Sawyer, 127 Mass. 491, 34 Am. Rep. 425; Cole v. Stewart, 11 Cush. (Mass.) 181; Burnside v. Twitch-ell, 43 N. H. 390; Angier v. Ag-new, 98 Pa. St. 587, 42 Am. Rep. 624; Jeffers v. Pease, 74 Vt. 215, 52 Atl. 422. Compare Farmers' Loan & Trust Co. v. Avera, - (Miss.) -, 7 So. 358.
56. Dorr v. Dudderar, 88 111. 107; Barley v. Pike, 62 N. H. 495; Waterman v. Matteson, 4 R. I. 539. And see Mosher v. Vehue, 77 Me. 169; Searle v. Sawyer, 127 Mass. 491, 34 Am. Rep. 425.
57. Cooper v. Davis, 15 Conn. 556; McKelvey v. Creevey, 72 Conn. 464, 77 Am. St. Rep. 321, 45 Atl. 4; Kircher v. Schalk, 39 N. J. L. 335.
58. Buckout v. Swift, 27 Cal. 433, 87 Am. Dec. 90; Harris v. Bannon, 78 Ky. 568; Clark v. Rey-burn, 1 Kan. 281; Vanderslice v. Knapp, 20 Kan. 647; Moore v. Moran, 64 Neb. 84, 89 N. W. 629. But see Dutro v. Kennedy, 9 Mont. 101, 22 Pac. 763.
59. Hamlin v. Parsons, 12 Minn. 108, 90 Am. Dec. 284; Hos-kin v. Woodward, 45 Pa. St. 42; Smith v. Altick, 24 Ohio St. 360: Turner v. Mebane, 110 N. C. 413 28 Am. St. Rep. 697, 14 S. E. 974. Contra, Buckout v. Swift, 27 Cal.
Remedies of the mortgagor. The mortgagee, if in possession, owes to the mortgagor the duty not to commit waste, and may be restrained from so doing by injunction,60 and may be required to account for any loss resulting therefrom.61 The mortgagee is not, however, liable as for permissive waste in failing to keep the premises in repair, or for improper cultivation of the land, unless he has been guilty of gross negligence in that respect.62
The mortgagor, if in possession, may bring an action against a third person for injuries to the premises, as if the property were not subject to a mortgage, he being regarded as the owner of the property.63