The mortgagee has, as before stated, in some of the states,

60. Casborne v. Scarfe, 1 Atk. 603; Clark v. Reyburn, 8 Wall. (U. S.) 318, 19 L. Ed. 354; Den-bam v. Kirkpatrick, 64 Ga. 71; Moore v. Anders, 14 Ark. 630, 60 Am. Dec. 551; Medley v. Elliott, 62 III. 332; White v. Whitney, 3 Metc. (Mass.) 81. Post, Sec. 618.

61. Bacon v. Bowdoin, 22 Pick. (Mass.) 401; Hutchinson v. Dear-ing, 20 Ala. 798; Kennett v. Plum-mer, 28 Mo. 142. See post, Sec. 614.

62. Burgess v. Wheate, 1 W. Bl. 123; White v. Rittenmyer, 30 Iowa, 268; Packer v. Rochester & S. R. Co., 17 N. Y. 283.

63-64. See ante, Sec.Sec. 216, 241.

65. Ante, Sec.Sec. 566, 568.

66. City of Alton v. Fishback, 181 III. 396, 55 N. E. 150; Mo-Shane v. Moberly, 79 Mo. 41; Hague v. West Hoboken, 23 N. J. Eq. 354; Walker v. Summers, 9 W. Va. 533; Kiernan v. Jersey City, 80 N. J. L. 273, 31 L. R. A. (N. S.) 1023, 78 Atl. 228.

67. Murphy v. Welch, 128 Mass. 489; Sims v. Field, 66 Mo. III; Teachout v. Duffus (Iowa), 115 N. W. 1010.

68. Duval v. Becker, 81 Md. 537, 32 Atl. 308.

In jurisdictions where the mortgagee has the legal title, he may bring ejectment against any person wrongfully in possession of the land,72 and, being en69. Cotton v. Carlisle, 85 Ala 175, 7 Am. St. Rep. 29, 4 So. 670; Barrett v. Hinckley, 124 III. 32, 7 Am. St. Rep. 331, 14 N. E. 863; Wilkins v. French, 20 Me. III; Norcross v. Norcross, 105 Mass. 265; Ellison v. Daniels, 11 N. H. 274; Shields v. Lozear, 34 N. J. L. 496, 3 Am. Rep. 256.

70. Baldwin v. Hatchett, 56 Ala. 461; Mills v. Shepard, 30 Conn. 98; Stevenson v. Polk, 71 Iowa, 278, 290, 32 N. W. 340; Webster v. Calden, 56 Me. 204; Steel v. Steel, 4 Allen (Mass.) 417; Buckley v. Daley, 45 Miss. 338; Ladd v. Wiggin, 35 N. H. 421; Terhune v. Bray's Ex'rs, 16 N. J. L. 54; Collamer v. Langdon, 29 Vt. 32. Formerly in England the mortgage passed as real property to the heir, who held it in trust for the personal representative. This was changed by statute (44 & 45 Vict. c. 41 Sec. 30) providing that the mortgagee's interest should pass to the personal representative.

71. Morris v. Barker, 82 Ala. 272, 2 So. 335; Trapnall's Adm'x v. State Bank, 18 Ark. 53; Huntington v. Smith, 4 Conn. 235; Brown v. Bates, 55 Me. 520, 92 Am. Dec. 613; Eaton v. Whiting, 3 Pick. (Mass.) 484; Butman v. James, 34 Minn. 547, 27 N. W. 66, Brooks v. Kelly, 63 Miss. 616; Glass v. Ellison, 9 N. H. 69; Jackson v. Willard, 4 Johns. (N. Y.) 41; Rickert v. Madeira, 1 Rawle (Pa.) 325. So as to the interest of one to whom the land is conveyed by an absolute deed for purposes of security. Harman v. May, 40 Ark. 146; Eherke v. Hecht, 96 Iowa, 96; Butman v. James, 34 Minn. 547, 27 N. W. 66.

72. 4 Kent's Comm. 164; Chamberlain v. Thompson, 10 Conn. 243, 26 Am. Dec. 390; Carroll v. Bal-lance, 26 III. 9, 79 Am. Dec. 354; Keith v. Swan, 11 Mass. 216; titled to the possession as against the mortgagor,73 may sue him in that form of action.74 But even in such states, a third person sued in ejectment by the mortgagor is usually not allowed to set up as a defense the outstanding legal title in the mortgagee.75 In some of such states, the foreclosure of the equity of redemption is ordinarily by means of a common-law action based on the existence of a legal title in the mortgagee.76

In jurisdictions where the theory of a legal title in the mortgagee is adopted, the mortgagee of a leasehold estate has been held liable, as an assignee, upon covenants contained in the lease.77 Where, however, the purely equitable conception of a mortgage prevails, the rule is otherwise, except, according to some decisions, when the mortgagee takes possession.78