The opinion of the court was delivered by
Collamer, J.— The mortgagor is the owner of the land, and, under our statute, is entitled to possession until condition broken. Even after this he is owner, and his widow is entitled to dower, &e., and the mortgagee is a creditor, having a lien on the land for his debt, with the right of possession. As between them the mortgagee is landlord and the mortgagor is tenant. Though much has been said as to the nature or name of such tenancy, it is universally allowed *698that he is tenant, and therefore no trespasser, until the mortgagee has asserted his right of possession, and then the mort- ' gagor has only the equity of redemption. This right of ownership, tenancy and equity of redemption the mortgagor may convey, and his assignee, on taking possession, holds the same relationship of tenant that the morgagor did, that is, he holds subject to the right of entry of the mortgagee.
This right of the mortgagee to take possession, before foreclosure of the equity of redemption, he seldom asserts, because, by so doing, he becomes accountable for the rents and profits, upon the mortgage. His taking possession, therefore, should be distinct and unequivocal and such as would clearly make him accountable for the use. It is not enough that he forbid the tenant to come upon the land, or to cut his crops or use his mill. He must tell him distinctly that he insists on taking possession himself, on his mortgage, and he must proceed actually to use and occupy. This defendant, as the assignee of the mortgagor, had the possession of the mill and was therefore a tenant and no trespasser. The plaintiff, as mortgagee, had the right of possession, but his telling the defendant not to run the mill or not to come upon the land was not taking possession. It would not render the plaintiff accountable for use until he actually took possession, and, until that time, the defendant was a tenant and not a trespasser.
Judgment affirmed.