dower, and the husband to curtesy.119 Likewise, the mortgagor may make a second mortgage of the property, or, in fact, any number of mortgages in succession, each inortgagee taking subject to prior mortgages of which he has notice.1

-Liability to execution.

120

The mortgagor's interest is liable to sale under execution for his debts;121 but it is not, in a number of jurisdictions, liable to execution under a judgment for the mortgage debt, on the ground that this would in effect involve a foreclosure of the mortgage in an unauthorized way.122 In other jurisdictions it is held that this may be done, the sale under execution being of the land free from the burden of the mortgage, 128

11 See ante, §§ 184, 208.

120 Coote, Mortgages, 371. See post, §§ 541, 545.

121 Trimm v. Marsh, 54 N. Y. 599, 13 Am. Rep. 623, Kirchwey's Cas. 299; Cushing v. Hurd, 4 Pick. (Mass.) 253, 16 Am. Dec. 335; Wiggin v. Heywood, 118 Mass. 514; Livermore v. Boutelle, 11 Gray (Mass.) 217, 71 Am. Dec. 708; Clinton Nat. Bank v. Manwarring, 39 Iowa, 281; Turner v. Watkins, 31 Ark. 429; Finley v. Thayer, 42 Ill. 350; Lord v. Crowell, 75 Me. 399; Gassenheimer v. Molton, 80 Ala. 521; Powell v. Williams, 14 Ala. 476, 48 Am. Dec. 105; Punderson v. Brown, 1 Day (Conn.) 93, 2 Am. Dec. 53; Harwell v. Fitts, 20 Ga. 723. The common-law rule was otherwise. 4 Kent's Comm. 160; Plunket v. Penson, 2 Atk. 290; Van Ness v. Hyatt, 13 Pet. (U. S.) 294.

122 Pugh v. Fairmount Gold & Silver Min. Co., 112 U. S. 238; Powell v. Williams, 14 Ala. 476, 48 Am. Dec. 105; Atkins v. Sawyer, 1 Pick. (Mass.) 351, 11 Am. Dec. 188; Delaplaine v. Hitchcock, 6 Hill (N. Y.) 14; Camp v. Coxe, 18 N. C. 52; Palmer v. Foote, 7 Paige (N. Y.) 437; Carpenter v. Bowen, 42 Miss. 28; Thornton v. Pigg, 24 Mo. 249; Goring's Ex'x v. Shreve, 7 Dana (Ky.) 64; Boone v. Armstrong, 87 Ind. 168.

Execution may, however, be levied on the premises in behalf of one to whom the note was assigned without the mortgage. Crane v. March, 4 Pick. (Mass.) 131, 16 Am. Dec. 329.

123 Hollister v. Dillon, 4 Ohio St. 197; Cottingham v. Springer, 88 Ill. 90; Lydecker v. Bogert, 38 N. J. Eq. 136; Whitmore v. Tatum,

517. Nature of the mortgagee's interest.

124

The mortgagee has, as before stated, in England and in some of the states, the legal title to the land. This title, however, does not make him the owner of the land, except in so far as the exercise of the rights of an owner is necessary or desirable for the protection of his security." Accordingly, his interest, as being a mere chose in action, is regarded as personal property, although the property mortgaged be freehold, and, on his death intestate, it passes to his personal representatives, and not to his heirs.125 So, the mortgagee's interest before foreclosure is, as being a mere chose in action, not subject to levy under execution against him.1

126

In jurisdictions where the mortgagee has the legal title, he may bring ejectment against any person wrongfully in possession of the land,127 and, being entitled to the possession as

54 Ark. 457; Crooker v. Frazier, 52 Me. 406. See Trimm v. Marsh, 54 N. Y. 599, 13 Am. Rep. 623, Kirchwey's Cas. 299.

124 Wilkins v. French, 20 Me. 111; Ellison v. Daniels, 11 N. H. 274; Shields v. Lozear, 34 N. J. Law, 496, 3 Am. Rep. 256, Kirchwey's Cas. 728; Cotton v. Carlisle, 85 Ala. 175, 7 Am. St. Rep. 29; Barrett v. Hinckley, 124 Ill. 32, 7 Am. St. Rep. 331, Kirchwey's Cas. 634; Norcross v. Norcross, 105 Mass. 265.

125 Collamer v. Langdon, 29 Vt. 32; Webster v. Calden, 56 Me. 204; Ladd v. Wiggin, 35 N. H. 421; Stevenson v. Polk, 71 Iowa, 278, 290; Baldwin v. Hatchett, 56 Ala. 461; Mills v. Shepard, 30 Conn. 98; Steel v. Steel, 4 Allen (Mass.) 417; Buckley v. Daley, 45 Miss. 338; Terhune v. Bray's Ex'rs, 16 N. J. Law, 54.

Formerly, in England, the mortgage passed to the heir as real estate, but he held it in trust for the personal representative. Wil liams, Real Prop. 427. This rule was changed by statute providing that the mortgagee's interest should pass to the personal representative. 44 & 45 Vict. c. 41, § 30.

126 Huntington v. Smith, 4 Conn. 235, Kirchwey's Cas. 295; Brown v. Bates, 55 Me. 520, 92 Am. Dec. 613; Trapnall's Adm'x v. State Bank, 18 Ark. 53; Eaton v. Whiting, 3 Pick. (Mass.) 484, Kirchwey's Cas. 298; Glass v. Ellison, 9 N. H. 69; Jackson v. Willard, 4 Johns. (N. Y.) 41; Rickert v. Madeira, 1 Rawle (Pa.) 325; Butman v. James, 34 Minn. 547.

127 4 Kent's Comm. 164; Carroll v. Ballance, 26 Ill. 9, 79 Am. Dec.

against the mortgagor," 128 may sue him in that form of action.120 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.130 In some of such states, the foreclosure of the equity of redemption is usually by means of a common-law action based on the existence of a legal title in the mortgagee.

131

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.182 Where, however, the purely equitable conception of a mortgage prevails, the rule is otherwise, except, perhaps, when the mortgagee takes possession.133

854; Keith v. Swan, 11 Mass. 216; Chamberlain v. Thompson, 10 Conn. 243, 26 Am. Dec. 390; Hobart v. Sanborn, 13 N. H. 226, 38 Am. Dec. 483; Drayton v. Marshall, 1 Rice Eq. (S. C.) 373, 33 Am. Dec. 84; Buckley v. Daley, 45 Miss. 338.

128 See post, § 519.

129 Keech v. Hall, 1 Doug. 21, Kirchwey's Cas. 314; Barrett v. Hinckley, 124 Ill. 32, 7 Am. St. Rep. 331, Kirchwey's Cas. 634; Doe d. Shute v. Grimes, 7 Blackf. (Ind.) 1; Brastow v. Barrett, 82 Me. 456; Tryon v. Munson, 77 Pa. St. 250, Finch's Cas. 538.

180 Smith v. Vincent, 15 Conn. 1, 38 Am. Dec. 52; Burr v. Spencer, 26 Conn. 159, 68 Am. Dec. 379; Allen v. Kellam, 69 Ala. 447; Denby v. Mellgrew, 58 Ala. 147; Woods v. Hilderbrand, 46 Mo. 284, 2 Am. Rep. 513; Hall v. Lance, 25 Ill. 277; Ellison v. Daniels, 11 N. H. 274 (writ of entry); Den d. Dimon v. Dimon, 10 N. J. Law, 156; Stinson v. Ross, 51 Me. 556, 81 Am. Dec. 591 (writ of entry). But in Maryland the mortgagor cannot sue in ejectment. Beall v. Harwood, 2 Har. & J. (Md.) 167, 3 Am. Dec. 532; Berry v. Derwart, 55 Md. 66. 131 See post, § 552.

132 McMurphy v. Minot, 4 N. H. 251, Kirchwey's Cas. 289, 2 Gray's Cas. 743 (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.

133 Astor v. Hoyt, 5 Wend. (N. Y.) 603, Kirchwey's Cas. 292; Johnson v. Sherman, 15 Cal. 287, 76 Am. Dec. 481; McKee v. Angelrodt, 16 Mo. 283.

§ 518. The relation not fiduciary.

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 merely, the relation is not one of trust, but is adversary, rather, in its nature. 13+ 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.185 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.136

In some jurisdictions, however, it is held that if the mortgagee buys the land at tax sale, he cannot assert the title so acquired as against the mortgagor or other lienors.137 In stating this view, the courts sometimes tend to base it on a quasi trust relation existing between the mortgagor and mortgagee, though it might perhaps be as well supported, in the majority of cases, on the ground that the mortgagee, as well as the mortgagor, is under an obligation to pay the taxes.138 In some

134 Cholmondeley v. Clinton, 2 Jac. & W. 1, 177, Kirchwey's Cas. 570; King v. State Mutual Fire Ins. Co., 7 Cush. (Mass.) 7; Griffin v. Marine Co. of Chicago, 52 Ill. 130, 142; Ten Eyck v. Craig, 62 N. Y. 406, Kirchwey's Cas. 590.

185 See post, § 520.

138 Holridge v. Gillespie, 2 Johns. Ch. (N. Y.) 30, Kirchwey's Cas. 579; Manlove v. Bale, 2 Vern. 84, Kirchwey's Cas. 569. See Moore v. Titman, 44 Ill. 367.

137 Hall v. Westcott, 15 R. I. 373, Kirchwey's Cas. 598; Woodbury v. Swan, 59 N. H. 22; Moore v. Titman, 44 Ill. 367; Fair v. Brown, 40 Iowa, 209; Connecticut Mut. Life Ins. Co. v. Bulte, 45 Mich. 113. 188 See Cooley, Taxation, 503; Schenck v. Kelley, 88 Ind. 444.

jurisdictions, however, a purchase at tax sale by the mortgagee is valid, as he owes no duty to the mortgagor or other persons interested in the land to pay the taxes.139

Apart from the question as to his right to purchase at tax sale, it is generally agreed that he may purchase any outstanding title,140 provided he does not do so to the injury of the mortgagor," 141 and may accordingly purchase at a sale under a prior mortgage, judgment, or other lien.142

519. The right to possession of the land.

Under the common-law view of a mortgage as passing the legal title, the mortgagee is entitled to the possession of the premises, and this is still generally the rule in states where the legal theory of a mortgage is held, except in so far as it may be changed by statute.143 When, however, the security is sufficient, the mortgagee rarely asserts his right to possession, although entitled thereto, since he is bound, if he does take possession, to account for the rents and profits of the land,1 144 and there is nothing to be gained by taking possession.145

189 Williams v. Townsend, 31 N. Y. 411, Kirchwey's Cas. 585; Wa terson v. Devoe, 18 Kan. 223.

140 Walthall's Ex'rs v. Rives, 34 Ala. 92; Waterson v. Devoe, 18 Kan. 223; Cameron v. Irwin, 5 Hill (N. Y.) 280; Harrison v. Roberts, 6 Fla. 711.

141 See Griffin v. Marine Co. of Chicago, 52 Ill. 130.

142 Kirkwood v. Thompson, 2 De Gex, J. & S. 613, Kirchwey's Cas. 574; Ten Eyck v. Craig, 62 N. Y. 406, Kirchwey's Cas. 590; Woodlee v. Burch, 43 Mo. 231; Walthall's Ex'rs v. Rives, 34 Ala. 92; Harrison v. Roberts, 6 Fla. 711; Roberts v. Fleming, 53 Ill. 196.

143 4 Kent's Comm. 155; Barrett v. Hinckley, 124 Ill. 32, 7 Am. St. Rep. 331, Kirchwey's Cas. 634; Knox v. Eaton, 38 Ala. 345; Lacky v. Holbrook, 11 Metc. (Mass.) 458; Kannady v. McCarron, 18 Ark. 166; Hobart v. Sanborn, 13 N. H. 226, 38 Am. Dec. 483; Gray v. Gillespie, 59 N. H. 469; Campbell v. Poultney, 6 Gill & J. (Md.) 94, 26 Am. Dec. 559; Brastow v. Barrett, 82 Me. 456; Youngman v. Railroad Co., 65 Pa. St. 278. Contra, Shields v. Lozear, 34 N. J. Law, 496, 3 Am. Rep. 256, Kirchwey's Cas. 728; Allen v. Everly, 24 Ohio St. 97. 144 See post, § 520.