The defendant claimed title to the mill-stones in question, by virtue of a mortgage made to him of certain real estate, upon which was situated a grist-mill. He had obtained against the mortgagors a decree for a foreclosure, and a judgment for the possession, in an action of ejectment. But before the expiration of the time limited for the foreclosure, and before he had taken actual possession, the mortgagors severed the stones from the mill, and sold them to the plaintiff. The defendant, having afterwards found them, took possession of them as his own property.
The question arising upon these facts, was, whether the plaintiff had thus acquired, as against the defendant, a valid title. Upon the trial in the court below, it was supposed, that, after a decree for a foreclosure had been passed, and a judgment rendered in an action of ejectment for the possession, the mortgagors might be considered as trespassers, in removing the fixed machinery, and disposing of it, in the manner stated in the motion.
The law, recognized in the case of Hodgson v. Gascoigne, was thought to be applicable to the present. 5 B. & Ald. 81. (7 E. C. L. 35.) It was there holden, that after a landlord had recovered judgment against his tenant, in an action of ejectment for the possession of the demised property, the tenant ceased to have any interest in the growing crops, and the sheriffhad no right to levy an execution upon them.
But, upon consideration, we are all satisfied, that the principle laid down in that case, does not apply to the present. There, the question was, as to the relative rights of a landlord and tenant; here, as to the rights of a mortgagor and mortgagee.
By repeated decisions, it is now fully established, that a mortgagor, before his right of redemption is foreclosed, continues the owner of the real estate mortgaged ; that he is not accountable for the rents and profits, nor liable, in an action *561at law, for waste committed while in possession. The mortgagee has merely a lien upon the property for the security of his debt, by virtue of which he may obtain possession, and appropriate the pledge in payment of his debt.
The mortgagor has, indeed, no right, by the commission of waste, to render the security inadequate. But the appropriate remedy for such conduct, is, by way of injunction. If the security is impaired, by cutting and carrying away the wood and timber, the mortgagee has no power to seize them, after they have been severed and carried away; but his duty, in such case, is, to restrain the mortgagor from such acts, by an injunction.
These general principles are not denied. But it is claimed, that the rights of the defendant have been varied, by the judgment in his favour for the possession. But we do not see, that that circumstance can make any material difference. He had not taken actual possession; nor had his title to the property become absolute, by the decree. He stood, simply, in the character of mortgagee out of possession. His further proceedings in relation to the mortgage, might, at any time, have been arrested, by paying him his debt. His interest in the property continued to be but a lien. The mortgagors continued in possession, and as such, were the owners. The millstones, after they had been severed from the mill, removed and sold, could not be reclaimed, by the defendant, by virtue of his mortgage. And although the design of the mortgagors probably was, to impair the defendant’s security, and prevent him from collecting the full amount of his debt; yet we cannot say, that he is entitled to relief, in the manner in which he has sought it. His duty was to have protected his rights, by an application for an injunction.
Upon this ground, therefore, without adverting to the other questions, which we do not consider it necessary to examine, we think a new trial must be granted.
In this opinion the other Judges concurred.New trial to be granted.