The opinion of the court was delivered by
Redfield, J.The question to be determined in the present case is, whether the mortgagee, after condition broken, and before foreclosure, can maintain either an action on the case, in the nature of waste, against the mortgagor in possession, for cutting timber and selling it, or trover for the timber.
First and last I have entertained a good deal of doubt upon this point; but none of the court have ever had any difficulty upon any other point in the case. Upon this point, if the case were entirely new, perhaps a majority of the judges would incline against the action. But it is certain, that no English case can be found directly against the action, and none any where, except the one from 15 Johns. And on the other hand this court, in the case of Hutchins v. Lathrop, certainly did sustain an action on the case, under circumstances almost precisely similar, — this particular point not being raised; and in Iiitchman v. Walton, 4 M. & W. 409, the court of exchequer, upon very full argument and consideration, seem to me to have decided, that the action is maintainable upon either count.
I consider, too, that the case of Morey v. McGuire, 4 Vt. 327, in the opinion of the court delivered by Hutchinson, Ch. J., and the case of Lull v. Matthews, 19 Vt. 322, in the very turning point of the case, are full authority in favor of sustaining the count in trover. And although I think a court of equity is manifestly the most appropriate place for redress of an injury of this kind, I hardly feel at liberty, under the circumstances, to insist, that the mortgagee shall have no remedy, in such a case, at law. Perhaps, under the state of precedent produced, he ought to be allowed redress upon both counts, — but clearly upon the count in trover.
And of this decision the defendant, the mortgagor, has no just ground 'of complaint, perhaps, as he may at any time defeat the plaintiff’s action, by paying the mortgage debt, which it is always his duty to do, and tendering the costs. And if he will not do that, but suffer the estate to go upon the debt, the mortgagee is justly entitled to his judgment. Judgment affirmed.