The facts sufficiently appear in the opinion. The complaint in this action consists of two counts.
By the first count the appellant, as administrator of the estate of William Price, deceased (appointed as such by a probate court of this state), seeks by a decree in equity to have a deed absolute on its face to lands in the State of California declared a mortgage, to redeem said lands from the same by setting off against the debt secured thereby damages in waste committed by the respondent in possession thereof as mortgagee after the death of the intestate, the mortgagor, and for a judgment over for the balance of the damages after the satisfaction and discharge of the mortgage debt.
By the second count the said appellant seeks a judgment against the respondent for damages for waste or trespass *Page 209 committed by the respondent, after the death of the intestate, to the same lands in his possession under the deed absolute on its face, but alleged to have been given as a mortgage. The specific acts complained of are cutting and selling the timber growing upon said lands. A demurrer to the complaint was interposed and sustained. The appeal is from the order sustaining the demurrer, and the judgment rendered thereon.
Waste, as understood in law, is permanent or lasting injury done or permitted to be done by the holder of a particular estate to the inheritance, or the prejudice of any one who has an interest in the inheritance. (Duvall v.Waters, 18 Am. Dec. 350; Dooley v. Stringham,4 Utah, 107, 7 P. 405; Davenport v.Magoon, 13 Or. 3, 4 P. 299; Cooley, Torts, p. 302; 28 Am. Eng. Enc. Law, 1st ed., 862.)
Waste and trespass are easily distinguished. Briefly stated, waste is the permanent or lasting injury to the estate by one who has not an absolute or unqualified title thereto. Trespass is an injury to the estate, or the use thereof, by one who is a stranger to the title. (Duvall v. Waters, supra; Lander v.Hall, 69 Wis. 326, 34 N.W. 80; High, Inj., 3d ed., sec. 650.)
Our statutes have in no manner changed the definition of waste as above given. We have also been unable to find any provision of the statutes that in any manner changes the distinction made by the authorities above cited. The only change made by the statute in action for waste, if it can be called a change, is found in that provision giving a right of action, to "any person aggrieved," for waste committed by a guardian, tenant for life or years, joint tenant, or tenant in common of real property. (Gen. Stats. 3274.)
It will be observed that this section in no manner changes the rights of a mortgagor or mortgagee in such action as they existed at common law.
At common law no person could maintain an action for waste but he who had the immediate estate of inheritance, without any interposing vested freehold. (28 Am. Eng. Enc. Law, 1st ed., 904.) Also, at common law a mortgagee in possession as such might commit waste, unless he had expressly covenanted against it; but he would be required to *Page 210 apply the timber cut to the interest and principal of the mortgage debt, in an action to foreclose or redeem. (2 Greenl. Cruise on Real Property, p. 111; Hill. Mortg., 4th ed., 1123; 28 Am. Eng. Enc. Law, 1st ed., p. 897;Hanson v. Derby, 2 Vern. 392;McCormick v. Digby, 8 Blackf. 99;Onderdonk v. Gray, 19 N. J. Eq. 65.)
"Although a mortgagee in fee in possession has a right at law to commit any kind of waste, because he is considered as the absolute owner of the inheritance, yet he will be restrained in equity; and the court of chancery will also decree an account to be taken of the trees cut down, and direct the produce to be applied first in the payment of interest due on the mortgage, and then in reducing the principal." (2 Greenl. Cruise on Real Property,supra.)
In Onderdonk v. Gray, supra, it is said: "A mortgagee in possession is bound to account for all rents, issues and profits received by him, and for all waste and destruction of the premises, and must deduct the allowance for these matters from the amount due on his mortgage; and Gray has adopted the proper course to entitle him to such allowance — filing a cross bill, and praying for such account, and to be allowed to redeem on paying the balance. But such allowances can only be claimed either on a bill to foreclose or a bill to redeem against a mortgagee in possession, and in possession as a mortgagee. He cannot be called to account in such suits for trespass committed by him; nor if he is in possession as a tenant of a mortgagor under a lease from him, which a mortgagee may take as well as a stranger, can the mortgagee claim an allowance for rent due on the lease or waste committed as a tenant." (See, also, Guthrie v. Kahle, 46 Pa. St. 331.)
Keeping these general principles in mind, we come to the main question presented by the averments in the first count of the complaint — the right of the administrator to maintain an action to redeem. Generally such action can be maintained by those who have an interest in the mortgaged premises, and would be losers by foreclosure.
"Any person who holds a legal estate in the mortgaged premises, or any part thereof, derived through, under, or in privity with the mortgagor, and any person holding either a *Page 211 legal or equitable lien on the premises, or any part thereof, under or in privity with the mortgagor's estate, may also in like manner redeem from a prior mortgage." (Pom. Eq. Jur. 280.)
"No person can come into a court of equity for a redemption of a mortgage but he who is entitled to the legal estate of the mortgagor, or claims a subsisting interest under him. * * * If the respondents have shown no interest in themselves, or a right to redeem the mortgage on their own account, or on account of others with whom some connection is shown, and whose interest they have a right to represent, their claims cannot be supported, notwithstanding some other person might have a right to enforce the same claim." (Grant v. Duane, 9 Johns. 611.)
At common law the real property of a decedent could not be subjected to the payment of simple-contract debts, and was not subject to administration; but in this, as in nearly all of the states, this rule has been changed by statute, and the real property, while descending to the heirs, is made subject to the payment of debts in the course of administration, and becomes assets in the hands of the administrator for that purpose. Hence it has been held that the administrator may have such an interest in the lands of the decedent as would entitle him to redeem, and therefore entitle him to maintain such an action.
In one case it is said: "It is also claimed that the suit is improperly brought by the administrator, and that the heirs should have been made parties. Whether in such cases the heirs are ever necessary parties, under our system, where the bill is filed for redemption, or to remove an alleged cloud in the shape of an undischarged mortgage, it is not now important to examine. * * * The administrator, being entitled under the statute to the possession of the lands of his intestate, has such an interest as entitles him to redeem or to compel a release of a satisfied mortgage; and, if the heirs would have been proper parties, the decree is nevertheless valid, inasmuch as it does complete justice as it stands, provided it is sustained by the proofs." (Enos v.Sutherland, 11 Mich. 541.)
Discussing the same question in another case, the court *Page 212 says: "It is said that this bill cannot be maintained by the administrator of Leach. In England, where the real estate upon the death of the intestate passes directly to the heir, and is not assets in the hands of the administrator for the payment of debts, the bill should be brought by the heirs. But with us the law is different. The action of ejectment is given to the administrator, and the heirs cannot have the action until there has been a division of the estate under a decree of the probate court in cases where a division is necessary. It is the duty of the administrator to pay off the debts out of the personal estate, if sufficient for that purpose, and prepare the estate for distribution among the heirs. To discharge this duty he must, of necessity, be permitted to maintain a bill of this description, as the only means of ascertaining what may be due, if anything, on the mortgage." (Merriam v.Barton, 14 Vt. 513.)
It will be noted that the right of the administrator to maintain an action to redeem the intestate's lands from a mortgage is based upon the express provisions of the law making the lands assets in his hands to be administered upon, and giving to him the right of possession thereof for the purposes of administration. Notwithstanding our statute gives the administrator appointed thereunder the right of possession of the lands of the intestate not exempted, and the right to the rents, issues, and profits thereof for the purpose of administration, and the same become assets in his hands for the payment of debts, it cannot be claimed or maintained that he is entitled to the possession of lands in another state, and under another jurisdiction, or that such lands become assets in his hands for the purposes of administration.
Discussing the power of administrators, the Supreme Court of Iowa uses the following language: "The administrator appointed in this state derives his powers from the statutes of this state. He succeeds to none of the powers or rights of the Pennsylvania administrator. His appointment empowers him to collect such assets of the estate as may be found in this state, and he may make such disposition of them as is directed by the laws of this state; and he is not answerable for his conduct either to the foreign administrator or to *Page 213 the power from which his authority is derived, but is independent of both. There is privity neither in law nor estate between them, and there is no general principle of law under which it can be held that a judgment against the one is binding upon the others." (Creswell v.Slack, 68 Iowa, 113, 26 N.W. 42.)
The Supreme Court of the United States, in Johnson v. Powers (139 U.S. 160, 11 Sup. Ct. 526), discussing the same question, quotes with approval from the opinion of Mr. Justice Grier in Stacy v.Thrasher (6 How. 58), in which he uses the following language: "The administrator receives his authority from the ordinary or other officer of the government where the goods of the intestate are situate, but coming into such possession by succession to the intestate, and incumbered with the duty to pay his debts, he is considered in law as in privity with him, and therefore bound or estopped by a judgment against him. Yet his representation of his intestate is a qualified one, and extends not beyond the assets of which the ordinary had jurisdiction." (Johnson v. Powers,139 U.S. 160, 11 Sup. Ct. 526.)
The following authorities hold to the same effect: 1 Woerner, Admn. 158; 8 Am. Eng. Enc. Law, 1st ed., 427; Taylor v. Barren, 35 N. H. 496;Deery v. Cray, 5 Wall. 803;Braithwaite v. Harvey (Mont.),36 P. 39; State v. Fulton (Tenn.Ch.App.), 49 S.W. 297.
If, then, an action to redeem lands from a mortgage by setting off and applying damages in waste committed by the mortgagee in possession as such can only be maintained in an action to foreclose or redeem, and if the administrator can only maintain an action to redeem as to such lands as are assets in his hands for the purpose of administration, or to which he is entitled to the possession, then it cannot be claimed that he has any power or right to maintain such action as to lands which are not assets in his hands, and the possession of which he is not entitled to.
Considering now the right of an administrator appointed under the law of this state to maintain an action for damages in the nature of waste committed after the death of the intestate by a mortgagee upon the mortgaged premises situated in another state, it is clearly apparent that, if the rule *Page 214 laid down in the authorities above cited prevails here, no such authority, power, or right exists.
If such claim for allowance for damages by waste can be made only in actions to foreclose or redeem under the reason given, then the administrator cannot maintain an action for waste committed by a mortgagee upon the mortgaged premises in an independent action. It may with a show of reason be claimed that the rights of the mortgagee and a mortgagor with reference to the possession of the mortgaged premises have been changed by our statute, which declares that a mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of a mortgage to recover the possession of the real property without foreclosure and sale. (Gen. Stats. 3284.)
The mortgagee, under the above provision, not having the right to recover the possession of the mortgaged premises before foreclosure and sale, has no right to the possession. Therefore his entry upon the mortgaged premises and cutting the timber thereon were without authority of law — a trespass for which he should be held liable in damages to the proper parties in a court of competent jurisdiction. If this be the correct view of the law, then he must be held liable for such damages under that section of our statute which gives a right of action to the "owner of such land" against any person who shall cut down or carry away any of the trees or timber thereon without lawful authority. (Gen. Stats. 3275.)
Can it be claimed under these provisions of the law that the administrator appointed by the district court of this state is in any sense such an owner of the lands situated in California, upon which the respondent, after the death of the intestate, committed the alleged trespass, as would entitle him, as such administrator, to maintain an action therefor? The title of the intestate to these lands upon his death vested, under our statute, in his heirs. It certainly cannot be pretended that the title to real estate in California upon the death of the intestate vested in the administrator in this state for any purpose whatever. Neither would the law of this state, under the authorities cited, vest in the administrator the right of possession, or the right to recover the possession, of said lands. If the administrator can have no title *Page 215 to the lands in California by virtue of his appointment as administrator in this state — if he is not entitled to the possession of the same under his appointment — he can have no right, title or interest whatever in them, and therefore cannot be called the "owner" thereof, in any sense or meaning of that word.
This court in giving an interpretation to the word "owner" as used in our statutes, has been very liberal; holding that one who had the right of possession to be the owner thereof. (For a full and exhaustive discussion of the question, see State v. Wheeler,23 Nev. 143, 44 P. 430.)
If, then, the administrator cannot, under these statutes, maintain the action, we must look to other provisions of the law to ascertain whether such authority is given. By sections 165, 166, pp. 144, 145, Stats. 1897, the legislature has conferred authority upon administrators to maintain certain actions. In the last-named section is found authority to maintain actions for trespass committed upon the real estate of the deceased while living. The facts shown here do not make a case within this provision, and the right of the administrator to maintain an action for trespass committed upon the lands of the deceased situated in this state can only arise by implication from his right to the possession, and the rents, issues, and profits, as conferred by preceding sections of the same act (sections 94 and 164), or by giving to the words "owner of such lands," of section 3275, above cited, an interpretation that would allow the party entitled to the possession of such lands a right of action.
We must therefore conclude that an administrator appointed under the laws of this state holds no such right, title, or interest in and to the lands of his intestate situated in another state as would authorize him to maintain an action to redeem from a mortgage thereon by setting off against the mortgaged debt waste committed thereon by the mortgagee in possession thereof as mortgagee after the death of the intestate; nor has such administrator such right, title or interest in said lands as would authorize him to recover for such damage committed as aforesaid; nor has he such power or authority conferred by our statutes to maintain an action for damages in trespass committed by the respondent *Page 216 upon said lands after the death of the intestate. The admitted wrong is not without its proper remedy, and the right of action can be maintained by the proper parties. The judgment and order will be affirmed.
BELKNAP, J.: I concur.