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 .
Though the mortgagee has, in those states in which the common-law theory of a mortgage is adopted, the legal title, while the mortgagor has an equitable interest, the reBuckley v. Daley, 45 Miss. 338; Hobart v. Sanborn, 13 N. H. 226, 38 Am. Dec. 483; Drayton v. Marshall, 1 Rice Eq. (S. C.) 373, 33 Am. Dec. 84.
73. See post, Sec. 610.
74. Keech v. Hall, 1 Doug. 21; Barrett v. Hinckley, 124 III. 32, 7 Am. St. Rep. 331, 14 N. E. 863; Doe d. Shute v. Grimes, 7 Blackf. (Ind.) 1; Brastow v. Barrett, 82 Me. 456, 19 Atl. 916; Tryon v. Munson, 77 Pa. St. 250.
75. Allen v. Kellam, 69 Ala. 447; Denby v. Melligrew, 58 Ala. 147; Smith v. Vincent, 15 Conn. 1, 38 Am. Dec. 52; Burr v. Spencer, 26 Conn. 159, 68 Am. Dec. 379; Hall v. Lance, 25 III. 277; Stin-son v. Ross, 51 Me. 556, 81 Am.
Dec. 591 (writ of entry); Woods v Hilderbrand, 46 Mo. 284, 2 Am. Rep. 513; Ellison v. Daniels, 11 N. H. 274 (writ of entry); Den d. Dimon v. Dimon, 10 N. J. L. 156.
76. See post, Sec. 652.
77. McMurphy v. Minot, 4 N. H. 251 (compare Trustees of Donations v. Streeter, 64 N. H. 106); Williams v. Bosanquet, 1 Brod. & B. 238; Farmers' Bank v. Mutual Assur. Soc, 4 Leigh (Va.) 69; Mayhew v. Hardesty, 8 Md. 479.
78. Astor v. Hoyt, 5 Wend. (N. Y.) 603; Johnson v. Sherman, 15 Cal. 287, 76 Am. Dec. 481; McKee v. Angelrodt, 16 Mo. 283. See 1 Tiffany, Landlord & Tenant, Sec. 158a(2) (f).
Lation is not one of trust, but is adversary, rather, in its nature.79 The position of the mortgagee is, however, similar to that of a trustee, in that, having procured the title, and perhaps the right of possession, for one purpose, that is, to secure his debt, he cannot utilize it for another purpose, that is, to make profits for his own advantage. Accordingly, the mortgagee is required to account for the rents and profits received by him while in possession.80 So, if the mortgagee, by reason of his position, obtains a new lease upon the land, such lease is regarded, not as belonging to him absolutely, but as a part of the interest mortgaged, and so subject to the right of redemption.81
Apart from the question as to the mortgagee's right to purchase at a tax sale,82 it is generally agreed that he may purchase any outstanding title,83 provided there is no actual lack of good faith on his part towards the mortgagor,84 and he may accordingly purchase at a sale under a prior mortgage, judgment, or other lien.85 This appears to involve merely an application of the principle that there is no relation of trust between the parties.