In our view, this case is to be decided upon somewhat broader grounds than those principally discussed at the argument.
In relation to one of those points, that the commencement and prosecution of a suit by the plaintiff to foreclose the mortgage, was an abandonment of his previous possession that he had taken of the premises, we apprehend the ruling was not sound. The case of Fay v. Valentine, 5 Pick. 418, cited to that point, goes no further than to hold that the institution of such action postpones the time for the commencement of the three years’ limitation, and to that extent is a waiver of the previous commencement of foreclosure by an entry and possession, but does not hold that the possession of *102the mortgagee, if he be in possession, is thereby lost or abandoned. The cases of Dorrell v. Johnson, 17 Pick. 263, and Merriam v. Merriam, 6 Cush. 91, would seem to hold, that such action to foreclose, by a suit at law, was not inconsistent with an actual possession of the premises by the mortgagee.
But, in the opinion of the court, the right to maintain his action does not depend upon the fact of the plaintiff having the actual possession. That would be so, if this was an action of trespass for merely entering upon the land, or for using the same for the ordinary purposes of husbandry. The acts complained of in the present action, and for which damages are demanded, are injuries to the freehold, rather than to the possession. The alleged trespass is the committing strip and waste upon the mortgaged premises, by cutting down and carrying away large quantities of standing wood and timber. The question is, as to the rights of a mortgagee to bring an action of trespass against the mortgagor or his lessee, for such cutting down and carrying away timber and trees there standing and being, and these acts done long after the condition of the mortgage was broken.
By force and effect of the mortgage, the legal estate at once vests in the mortgagee, and as between the parties to the mortgage, the right of possession also immediately passes to the mortgagee, unless he has stipulated for the continuance of the possession in the mortgagor until condition broken. In either of these cases, after condition broken, his right of immediate possession accrues, and as between these parties it carries with it the incidents of a right to sue in trespass for any injury to the freehold by strip and waste in cutting down, and carrying to market, valuable timber trees. The possession of the mortgagor—if he was in the apparent possession—is not one adverse to the possession of the mortgagee. As to injuries of the character above described, the acts are beyond the possession of the mortgagor, and whoever is the actor, he is amenable to the mortgagee for the violation of his right. The foundation of the error on this subject, if error there has been, arises from the want of proper discrimination as to the *103relation of mortgagor and mortgagee in reference to the common and ordinary use of the mortgaged premises, and those acts for which a license may be properly implied. Many acts done by a mortgagor, which would otherwise be acts of trespass or wrong done to the mortgagee, are therefore fully authorized when from the circumstances of the case, the assent of the mortgagee may be reasonably presumed, as is stated in the case of Smith v. Moore, 11 N. Hamp. 55.
But independent of such license either express or implied, a mortgagee can maintain trespass against the mortgagor, or one acting under his aúthority, who shall cut and carry away timber trees from the mortgaged premises.
This doctrine was early sustained in the state of Maine, in the case of Stowell v. Pike, 2 Greenl. 387; Smith v. Goodwin, 2 Greenl. 173; and confirmed by Bussey v. Page, 2 Shepley, 132; Frothingham v. McKusick, 11 Shepley, 403.
It is also the law of New Hampshire. Pettingill v. Evans, 5 N. Hamp. 54; Sanders v. Reed, 12 Ib. 558. But what is of greater authority with .us, and quite conclusive, are the cases of Marsh v. Wentworth, and Marsh v. Horton, decided in Berkshire, September term, 1846, but which, through some casualty, were not published in the volumes of Eeports.
These two cases presented the question as to actions of trespass quare clausum fregit, against the mortgagor himself, and also against those claiming under him, and it was held as respects both, that this action would lie for cutting down and removing standing timber trees.
These cases were fully considered and deliberately settled by this court, and we see no reason to doubt their correctness.
The result will be, therefore, that the exceptions are sustained, and a new trial ordered. Exceptions sustained.