delivered the opinion of the Court as follows :
If A. mortgage lands to B. in fee, the legal estate is considered to be in B. as between him and A. and those claiming under A ; — but as to all the world but B., A is considered as seised of the legal estate, apd so may convey to C. subject, however, to the mortgage. Blaney v. Bearce, ante, p. 132. For this reason B. may maintain trespass against A. and those claiming under him, because A's possession is in submission to B's title, and is 'in fact the possession of B. In Newhall v. Wright, 3 Mass. 138. Parsons, C. J. delivering the opinion of the Court, says— “ It is very clear that when a man, seised of lands in fee, shall “ mortgage them, if there be no agreement that the mortgagor shall retain the possession, the mortgagee may enter imme- “ diately — put the mortgagor out of possession, and receive “ the profits; and if the mortgagor refuses to quit the possession, the mortgagee may consider him as a trespasser, and may “ maintain an action of trespass against him, or he may in a writ “ of entry recover against him as a disseisor.”- There is nothing then in the relation between mortgagor and mortgagee, inconsistent with the nature of an action of trespass by the latter against the former; — and surely a mortgagor, or one claiming under him, is not less liable for an injury to the mortgagee by cutting down and carrying away timber and wood from the prepises, than he would be by merely withholding the possession, $nd receiving the rents -apd profits to his, own use. Union Bank *390Emerson, 15 Mass, 159, Bro. Tr. 55, 362. 5 Rep. 13. Cro, Eliz. 784. We need not however rely on these cases, or decide on the form of action, as the parties have waived all objections to form, if any exist. But on these principles we decided the case of Smith v. Goodwin, cited for the plaintiff; and on the same principles we think the action maintainable, unless the alleged usage and general understanding with respect to felling trees and clearing wild lands though mortgaged to secure payment of the purchase-money should be considered as preventing the application of those principles to a case like the present. It was urged by the defendant’s counsel that such usage and general tacit understanding are equal to a license from the mortgagee to the mortgagor or his assignee, to do the acts which are charged in this action as a trespass. The facts in the case do not present this question. We have no means of knowing whether any such usage and general understanding exist. The argument of the counsel therefore cannot avail, as it does not apply. If such usage and understanding existed at the time of the transactions of which we have been speaking, and were considered as amounting to a license, and pleadable as such against the deed in question, they should have been disclosed in the form of a special plea, and the question arising thereon left to the decision of the jury. As the case stands the plaintiff must have judgment for the value of the timber and costs, according to the agreement of the parties.
Note. — In this case Preble J. gave no opinion.