42. Ante, this section, note 33.

43. Batterman v. Albright, 122 N. Y. 484, 11 L. R. A. 800, 19 Am. St. Rep. 510. 25 N. E. 856, per Bradley J.

44. Peugh v. Davis, 113 U. S. 542, 28 L. Ed. 1127, Dicken v. Simpson, 117 Ark. 304, 174 S. W. 1154; Murdock v. Clarke, 59 Cal.

683; Clark v. Finlon, 90 111. 245; Ten Eyck v. Casad, 15 Iowa, 524; Brown v. South Boston Sav. Bank, 148 Mass. 300, 19 N. E. 382; Baker v. Cunningham, 162 Mo. 134, 85 Am. St. Rep. 490, 62 S. W. 445; Dawson v. Drake, 30 N. J. Eq. 601; Hubbell v. Moulson, 53 N. Y. 225, 13 Am. Rep. 519; Green v.

In order thus to charge one, as a mortgagee in possession, with the profits which he might have received by the exercise of reasonable diligence, but which he did not receive, he must have been in possession as mortgagee, and with knowledge that he occupied such a relation, and he is not so liable if he was in possession otherwise, or he believed himself to be a purchaser, and it afterwards turns out that he had merely a mortgage or other lien on the land.47

If the mortgagee himself occupies the premises, he is liable, on an accounting, for a reasonable rent;48

Rodman, 150 N. C. 17G, 63 S. E. 732; Anderson v. Lauterraan, 27 Ohio St. 104; Swegle v. Belle, 20 Ore. 323, 25 Pac. 633; Reitenbaugh v. Ludwick, 31 Pa. St. 131; Sea-ver v. Durant, 39 Vt. 103.

45. Anonymous, 1 Vern. 45; Hughes v. Williams, 12 Ves. 493; Daniel v. Coker, 70 Ala. 260; Clark v Finlon, 90 111. 245; Milliken v. Bailey, 61 Me. 316; Miller v. Lincoln, 6 Gray (Mass.) 556; Long v. Richards, 170 Mass. 120, 64 Am. St. Rep. 281, 48 N. E. 1083; At-wood v. Warner, 92 Neb. 370, 138 N. W. 605; Schaeffer v. Chambers, 6 N. J. Eq. 548, 47 Am. Dec. 211; Walsh v. Rutgers Fire Ins. Co., 13 Abb. Pr. (N. Y.) 33; Sanders v. Wilson, 34 Vt. 318; Liskey v. Snyder, 66 W. Va. 149, 66 S. E. 702.

46. Pollard v. American Freehold Land Mortgage Co., 139 Ala. 183, 35 So. 767; Murdock v. Clarke,

90 Cal. 427, 27 Pac. 275; Moshier v. Norton, 100 111. 63; Whitley v. Barnett, 151 Iowa, 487, 131 N. W. 704; Gerrish v. Black, 104 Mass. 400; Brown v. Soutb Boston Sav. Bank, 148 Mass. 300, 19 N. E. 382; Peugh v. Davis, 113 U. S. 542, 28 L. Ed. 1127.

47. Parkinson v. Hanbury, L. R. 2 H. L. 1; Daniel v. Coker, 70 Ala. 260; Anglo-Californian Bank v. Field, 154 Cal. 513, 98 Pac. 267; Gaskell v. Viquesney, 122 Ind. 244, 17 Am. St. Rep. 364, 23 N. E. 791; Whitley v. Barnett, 151 Iowa, 487, 131 N. W. 70 4; Young v Omohundro, 69 Md. 424, 16 Atl. 120; Morris v. Budlong, 78 N. Y. 555; Hall v. Westcott, 17 R. I. 504, 23 Atl. 25; see Barnard v. Jemison, 27 Mich. 230.

48. American Freehold Land Mortgage Co. of London, v. Pollard, 132 Ala. 155, 32 So. 630; but he is not liable for an increase of rental value or profits arising from improvements made by himself, with the cost of which he is not credited.49

The mortgagee is usually required, in accounting for the rents and profits received, to make a rest at the end of each year, if at that time the rents and profits received exceed the interest due, and to deduct such excess from the principal sum in determining the amount to bear interest during the following year, since otherwise the mortgagee would have the use of such excess without paying therefor.50 Occasionally the court will require the rests to be made more frequently than once a year.51

The obligation of a mortgagee in possession to account for rents and profits may be asserted by a junior mortgagee as well as by the mortgagor,52 but such obligation can be asserted by the junior mortgagee only when it could be asserted by the mortgagor, or transferee of the mortgagor.53 Consequently, it

Barnett v. Nelson, 54 Iowa, 41 37 Am. Rep. 183, 6 N. W. 49; Walter v. Calhoun, 88 Kan. 801, 129 Pac. 1176; Strong v. Blanchard, 4 Allen (Mass.) 538; Van Buren v. Olmstead, 5 Paige (N. Y.) 9; Sanders v. Wilson, 34 Vt. 318; 4 Kent's Comm. 166.

49. Dozier v. Mitchell, 65 Ala. 511; Jones v. Fletcher, 42 Ark. 422; Hidden v. Jordan, 28 Cal. 302; Montgomery v. Chad wick, 7 Iowa, 114; Bradley v. Merrill, 91 Me. 340, 40 Atl. 132; Moore v. Cable, 1 Johns. Ch. (N. Y.) 385; McArthur v. Franklin, 16 Ohio St. 193. See Howard v. Clark, 72 Vt. 429, 48 Atl. 656; Gillis v. Martin, 17 N. C. 470, 25 Am. Dec. 729.

50. Gordon v. Lewis, 2 Sumn. 143, Fed. Cas. No. 5613; Moshier v. Norton, 100 111. 63, 73; Van Vronker v. Eastman, 7 Mete. (Mass.) 157; Shaeffer v. Chambers, 6 N. J. Eq. 548, 47 Am. Dec. 211; Gladding v. Warner, 36 Vt. 54; Snavely v. Pickle, 29 Gratt. (Va.) 27; Green v. Wescott, 13 Wis. 606; Lynch v. Ryan, 137 Wis. 13, 18 N. W. 174. Compare Walter v. Calhoun, 88 Kan. 801, 129 Pac. 1176.

51. Adams v. Sayre, 76 Ala. 509; Gibson v. Crehore, 5 Pick. (Mass.) 146.

52. Goring v. Shreve, 7 Dana (Ky.) 64; Hatch v. Falconer, 67 Neb. 249, 93 N. W. 172; Leeds v. Gifford, 41 N. J. Eq. 464. 5 Atl. 795; White v. Maynard, 54 Vt. 575; Harrison v. Wyse, 24 Conn. 1, 6S Am. Dec. 151.

53. Gaskell v. Vique.-ney, 122 cannot properly be asserted by a junior mortgagee as against a senior mortgagee who has acquired the mortgagor's title, whether by foreclosure or otherwise,54 or when he is in possession as tenant of the mortgagor.55

Even though the senior mortgagee does not actually take possession, he must, it has been decided, account to the junior mortgagee as if he had done so, if he has, by the assertion of his rights, prevented the junior mortgagee from taking possession by force of his mortgage.56

(d) Sequestration by receiver. It has, in a few states, been decided that the existence of a statutory provision denying the right of possession to the mortgage creditor precludes the court from depriving the mortgagor of the possession of the property, by the appointment of a receiver, in the absence of an express pledge of the rents and profits,57 and in one state such an effect has been given to a statute merely denying to the mortgagee an action to recover the possession.58 In perhaps two states such a statute has been regarded as precluding the appointment of a receiver merely to sequestrate the rents and profits for the benefit of the mortgage creditor, though allowable for the purpose of preserving the property.59 In other states the fact that the mortgagee has no right of possession before foreclosure has been regarded as not affecting his right to ask for the appointment of a receiver.60