It is the law, in this jurisdiction, that a mortgagee who takes possession of the mortgaged premises without the consent of the owner of the equity of redemption, express or implied, is not a mortgagee in possession (Becker v. McCrea, 193 N.Y. 423), and has, in so far as his rights as mortgagee have effect, unlawfully taken possession and is as to the owner of the premises a trespasser removable by the action of ejectment. (Barson v.Mulligan, 191 N.Y. 306; Howell v. Leavitt, 95 N.Y. 617;Gross v. Welwood, 90 N.Y. 638; Deutsch v. Haab, 135 App. Div. 756. ) Other jurisdictions have applied such principles. (Russell v. Ely, 2 Black [U.S.], 575; Newton v. McKay,30 Mich. 380; Pierce v. Grimley, 77 Mich. 273; Endel Son v.Walls, 16 Fla. 786.) It follows, obviously, that Cochran was not a mortgagee in possession of the mortgaged property, nor were the defendants such mortgagees. Neither he nor they acquired the security, additional to the lien under the mortgage, of the possession of the property and the rents and income thereof pending the foreclosure of the mortgage. They were quite as far from acquiring it as they would have been had they taken possession under a claim hostile to the title of the plaintiff or an unpaid judgment against him or his promissory note. They had no right to it under the mortgage or through any subsequent agreement or consent of the plaintiff and in no other way could they get it. Their tortious possession had no relation to their status or rights as mortgagees or remedies applicable to them, but made them trespassers from whom possession and damages might be recovered through actions at law. Because they did not take or hold the possession of the property or the rents or income as a security for *Page 428 the indebtedness, or in the quasi character of trustee or bailiff of the plaintiff, but wrongfully and strangely, he cannot through an accounting either compel or have an application of the rents and income to the mortgage. It is, we think, the universal rule, and the reasons would seem apparent, that in order to have the action for an accounting for rents and profits against a mortgagee or to charge him with them, it must be alleged, in effect, and proven that he has occupied the mortgaged premises as a mortgagee in possession. (Armistead v. Bishop, 161 S.W. Rep. 182 [not yet officially reported]; Gaskell v. Viquesney,122 Ind. 244; Hart v. Chase, 46 Conn. 207; Anderson v.Lanterman, 27 Ohio St. 104; Rogers v. Herron, 92 Ill. 583.) The present complaint alleges the opposite. The case of Shelley v. Cody (187 N.Y. 166) is not an authority in the question under consideration because it was not presented or considered in deciding the case.
The appellant asserts that section 379 of the Code of Civil Procedure confers the right to redeem against the mortgagee in possession with no limitation as to the character of the possession. The section is: "An action to redeem real property from a mortgage, with or without an account of rents and profits, may be maintained by the mortgagor, or those claiming under him, against the mortgagee in possession, or those claiming under him, unless he or they have continuously maintained an adverse possession of the mortgaged premises, for twenty years after the breach of a condition of the mortgage, or the nonfulfilment of a covenant therein contained." The section has not such purpose or effect, but rather that of creating a statute of limitations in favor of a mortgagee who, being originally a mortgagee in possession, assumes while such and continuously maintains an adverse possession for twenty years. (Becker v. McCrea,193 N.Y. 423; Wadleigh v. Phelps, 149 Cal. 627, 640.)
An action to redeem will lie against a mortgagee who is not and has not been in possession. To redeem from a *Page 429 mortgage is to have the lien thereof discharged upon the payment of the debt secured by it or because it has been paid, and may be effected at any time after the entire debt secured is due and payable. In the present action, however, the complaint does not state facts sufficient to constitute the cause of action to redeem. Obliterating from it the allegations relating to the unlawful possession and the receipt of the rents and income by Cochran and the defendants, there remain as the material facts alleged the original lease to the plaintiff, the loans by Cochran to him and the instruments constituting the mortgage; and the prayer for a judgment that those instruments were given as security for the payment of the loans and constitute a mortgage by operation of law, and for other and further proper relief. A court will not entertain an action which seeks solely to have a deed or written instrument declared a mortgage and excludes the enforcement or cancellation of or redemption from the mortgage. (Cowing v. Rogers, 34 Cal. 648; Cline v. Robbins,112 Cal. 581; Mack v. Hill, 28 Mont. 99.)
The judgment should be affirmed, with costs, and the question certified answered in the negative.
All concur with MILLER. J., except COLLIN, J., dissenting in opinion, with whom WERNER and HOGAN, JJ., concur.
Ordered accordingly.