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admitted of the attornment of the tenant (and whether the tenancy existed before or after the date of the mortgage, has been held to make no difference) to the mortgagee after forfeiture; and this provision has been incorporated into the statute law of this country. It will

depend, therefore, upon the act of the tenant, un*166 der a lease from the mortgagor subsequent to the mortgage, whether the mortgagee can sustain a suit or distress for the rent prior to his recovery in ejectment.

In New-York, I apprehend, the mortgagee can in no case, without such attornment, have any remedy at law for the rent, for he is deprived of any action to recover the possession; and if he gains the possession, it must be by contract with the mortgagor, or by one with the tenant, subsequent to the forfeiture, or by the aid of a court of equity, and which aid would be afforded when the pernancy of the rents and profits becomes indispensable to the mortgagee's indemnity.b

(2.) Accountable for the profits.

If the mortgagee obtains possession of the mortgaged premises before forecloseure, he will be accountable for the actual receipts of the net rents and profits, and nothing more, unless they were reduced, or lost by his wilful default, or gross negligence. By taking possession, he

those accruing afterwards, from a tenant holding under a lease from the mortgagor, subsequent to the mortgage.

• New-York Revised Statutes, vol. i. 744, sec. 3. New-Jersey Revised Laws, 192, sec. 17. 3 Halsted, 317.

The interest of the mortgagee before foreclosure, is not the subject of sale on execution at law, notwithstanding the debt is due and the estate has become absolute at law. Jackson v. Willard, 4 Johns. Rep. 41, and see 4 Day's R. N. S. 235. 16 Mass. Rep. 345. 3 Pick. Rep. 489. 1 Walker's Miss. Rep. 194, S. P.

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Anon., 1 Vern. 44. 1 Eq. Cas. Abr. 328, pl. 1.

2 Call, 428. Ballinger v. Worsley, 1 Bibb, 195.

Robertson v. Campbell,

Van Buren v. Olmstead,

5 Paige, 1. Felch v. Felch, in Vermont, cited in The Law Reporter for

September, 1846.

imposes upon himself the duty of a provident owner, and he is bound to recover what such an owner would, with reasonable diligence have received. The net rents and profits are to be ascertained after payment of taxes and ordinary repairs, and other expenses of that character, and the mortgagee is not to be charged with the increased rents and profits arising from the use of any permanent improvements made by himself. He may charge for the expenses of a bailiff or receiver, when it becomes proper to employ one; but he is not entitled to make any charge, by way of commission, for his own trouble in managing the property and collecting and receiving the rents. This is the English rule, and the evident policy of it is to guard against abuse, in cases where there might be a strong temptation to it; and the rule has been followed in New-York and Kentucky, while in Massachusetts a commission of five per cent. has been allowed to the assignee of a mortgagee for managing the estate. The mortgagee in possession is *like- *167 wise allowed for necessary expenditures, in

⚫ Williams. Price, 1 Sim. & Stu. 581. 3 Powell on Mortgages, 949, a. note. Hughes v. Williams, 12 Ves. 493.

Bell v. Mayor of New-York, 10 Paige, 49.
Bonethon v. Hockmore, 1 Vern. 316.

French v. Baron, 2 Atk. 120. Godfrey v. Watson, 3 ibid. 517. Langstaffe v. Fenwick, 10 Ves. 405. Davis . Dendey, 3 Madd. Ch. Rep. 95. Clark v. Robbins, 6 Dana's Ken. Rep. 350.

Moore v. Cable, 1 Johns. Ch. Rep. 385. Breckenridge v. Brooks, 2 Marshall, 339. Gibson v. Crehore, 5 Pick. Rep. 146. The Massachusetts Revised Statutes, in 1835, part 3, tit. 3, c. 107, provide, that after the breach of the condition of the mortgage of real estate, the mortgagee or his assignee may take possession peaceably, or he may recover it by suit; and that, in either case, possession for three years forecloses the right of redemption. He may also enter or recover possession by suit before a breach of the condition, and the three years will not run except from the time of the breach. Upon redemption within the three years, the mortgagee must account for the rents and profits, and will be allowed for the expense of reasonable repairs and improvements, and all other necessary expenses in the care and management of the estate. This would seem to put an end to the allowance of any commission.

keeping the estate in repair, and in defending the title;" but there has been considerable diversity of opinion on the question, whether he was entitled to a charge for beneficial and permanent improvements. The clearing of uncultivated land, though an improvement, was not allowed in Moore v. Cable, on account of the increasing difficulties it would throw in the way of the ability of the debtor to redeem. But lasting improvements in building have been allowed, in England, under peculiar circumstances; and they have been sometimes allowed, and sometimes disallowed in this country. The mort

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Godfrey v. Watson, 3 Atk. 517. Lord Alvanley, in Hardy v. Rees, 4 Ves. 480. Moore v. Cable, 1 Johns. Rep. 385. Saunders v. Frost, 5 Pick. Rep. 259. The mortgagee is bound to keep the estate in necessary repair, and if he be guilty of wilful default or gross neglect as to repairs, he is responsible for loss and damages occasioned thereby. But he is not bound to repair against the natural effects of waste and decay from time. Russell v. Smith, 1 Anst. 96. Hughes v. Williams, 12 Ves. 495. Wragg v. Denham, 2 Younge & Coll. 117. 121. Dexter v. Arnold, 2 Sumner, 103. He may maintain trespass or trover for cutting and carrying away the timber. Frothingham v. M'Kusick, 24 Maine Rep. 403.

Exton v. Greaves, 1 Vern. 138. Talbot v. Braddill, ibid. 183, note. Quarrell v. Beckford, 1 Madd. Rep. 153, Phil. edit. A tenant for life cannot make beneficial improvements and charge them on the inheritance. Coldecott v. Brown, 2 Hare's Ch. Rep. 144.

In Conway v. Alexander, 1 Cranch, 218, the circuit court for the District of Columbia directed an allowance for permanent improvements; and, though the decree was reversed on appeal, that point was not questioned. So, in Ford v. Philpot, 5 Harr. & Johns. 312, a similar allowance was made in chancery, and that point was untouched in the court of appeals. In Russell v. Blake, 2 Pick. Rep. 505, it was said, that the mortgagee could not be allowed for making any thing new, but only for keeping the premises in repair. So, in Quin v. Brittain, 1 Hoffman's Ch. Rep. 353, Clark v. Smith, Saxton's Ch. Rep. in New-Jersey, 121, Dougherty v. M'Colgan, 6 Gill & Johns. 275. S. C. Raymond's Digested Chancery Cases, 342, and in Bell v. Mayor of New-York, 10 Paige, 49, it was held to be a general principle in chancery, though not without exceptions, that a mortgagee in possession is not to be allowed for new improvements. All the cases agree, that the mortgagee is to be allowed the expense of necessary repairs, and beyond that the rule is not inflexible, but it is subject to the discretion of the court, regulated by the justice and equity arising out of the circumstances of each particular case. See, on this subject, Burge's Comm. on Colonial and Foreign Laws, vol. ii. 205.

gagee in possession holds the estate with duties and obligations analogous in some respects to those of a trustee; and if he takes the renewal of a lease, it is for the benefit of the estate, and not for his own benefit. He can make no gain or profit out of the estate, which he holds merely for his indemnity."

*(3.) Of Registry.

*168

The mortgagee's right depends very essentially upon the registry of his mortgage, and upon the priority of that registry. The policy of this county has been in favour of the certainty and security, as well as convenience of a registry, both as to deeds and mortgages; and by the statute law of New-York, every conveyance of real estate, whether absolutely, or by way of mortgage, must be recorded in the clerk's office of the county in which the real estate is situated, after being duly proved or acknowledged, and certified, as the law prescribes. If not recorded, it is void as against any subsequent purchaser, or mortgagee, in good faith, and for a valuable consideration, of the same estate, or any portion thereof, whose conveyance shall be first duly recorded. It may be said, generally, that this is the sub

Holdridge v. Gillespie, 2 Johns. Ch. Rep. 30. In England, it is held, that the mortgagee of a term is liable on the covenants in the lease assigned to him, by way of mortgage, though he has never been in possession of the term, or taken the issues and profits thereof. Williams v. Bosanquet, 1 Brod. Bing. 72. But, in New-York, it is held, that such a mortgagee is not liable as assignee upon the covenants. Walton v. Cronly, 14 Wendell, 63. Astor v. Miller, 2 Paige, 68. This last decision is conformable to that of Eaton v. Jaques, Doug. Rep. 455. By the Massachusetts Revised Statutes of 1835, part 2, tit. 4, c. 65, sec. 10, 15, the interest of the mortgagee before foreclosure, is deemed personal assets in the hands of executors and administrators. He is chargeable with waste, but what is waste, in respect to clearing the land for timber, must depend on circumstances. Givens v. M'Calmont, 4 Watts, 460.

New-York Revised Statutes, vol. i. 756, sec. 1. Ibid. 762, sec. 37. The term purchaser, in the statute, is declared to embrace every mortgagee, and his assignee. A purchaser for a valuable consideration, within the

stance of the statute law on the subject in every state of the Union; but in some of them the recording is still more severely enforced, and deeds are declared void, at least as to all third persons, unless recorded. If the question of right between a mortgagee, and a subsequent mortgagee or purchaser of the same estate, depended entirely upon the existence and priority of the registry, it would turn upon a simple matter of fact of the easiest solution, and it would undoubtedly remove much opportunity for litigation. The French ordinance of 1747, allowed to creditors and purchasers, having notice of a

deed containing a substitution of an estate prior *169 to their contract or *purchase of the same, to

object to the want of registry of the deed according to the requisition of the ordinance. The ordinance was framed by an illustrious magistrate, the Chancellor d'Aguesseau, and the commentators upon it, laid it down as a fixed principle, that not even the most actual and direct notice would countervail the want of

meaning of the registry act, is one who has advanced a new consideration for the estate conveyed, or who has relinquished some security for a pre-existing debt due him. The mere receiving of a conveyance in payment of a pre-existing debt is not sufficient to give him a preference over a prior unregistered mortgage. Dickerson v. Tillinghast, 4 Paige, 215.

In Pennsylvania, no deed or mortgage is good unless recorded in six, and in Delaware, no mortgage is good unless recorded in twelve months; and in Massachusetts, Rhode Island, Connecticut, and some other states, the deed does not operate until recorded, except as between the parties and their heirs.. In Ohio, deeds must be recorded in six months; and an unrecorded deed is void against a subsequent purchaser for valuable consideration, without notice of the deed, whether the subsequent deed be, or be not recorded. In Georgia, mortgages of real or personal property are to be recorded within three months from their date, or they lose their preference. Prince's Dig. edit. 1836, p. 165. In Indiana, mortgages must be recorded, or deposited for record, in ninety days, and in Kentucky, in sixty days, to be valid against creditors. The Louisiana code, art. 3317. 3333, requires all mortgages, whether conventional, legal, or judicial, to be recorded, and their effect ceases unless renewed within ten years. But the rule does not apply to mortgages to which husbands, tutors, and curators are subjected by operation of law.

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