The opinion of the Court was delivered by
Weston C. J.According to the decisions in Massachusetts before the separation, and of this state since, cited for the plaintiffs, he is clearly entitled to judgment. The principles established by these decisions are necessary for the security of the mortgagee. It often happens, that the timber upon wild or unimproved land, constitutes its principal value. Unless it is protected for the mortgagee by adequate remedies, the value of his lien may be defeated or greatly impaired. The timber, standing and growing upon the land, is as much a part of the realty, as the land itself. No equitable or legal considerations have been urged by the counsel for the defendant, which did not apply with equal force in the case of Smith v. Goodwin, 2 Greenl. 173. Indeed, that was a stronger case, for the house, which Goodwin purchased and removed, was built by the mortgagor subsequent to the mortgage, and did not constitute originally a part of the security of the mortgagee.
As between the plaintiff and the mortgagor, and those claiming under him, the property in the timber was in the plaintiff. He must doubtless take it, subject to a liability to account for the proceeds, if the land should be redeemed ; but a third person, purchasing the timber, which is a part of his security, takes it subject to the paramount rights of the mortgagee, as much as if he had purchased the land.
Judgment for the plaintiff.