The decree which was offered in evidence determined conclusively, as to the parties to it and their privies, the effect of the contract under which the race was extended across the island to the main channel of the river. By that contract the mill owners secured to themselves the right of continuing the race directly across the island, and of keeping it up forever, for the purpose of conducting the water through it to their mills. This right, affecting essentially the water power for propelling the mills, would manifestly pass with the mills to all subsequent purchasers, and they would be in legal privity with their grantors, and bound by the terms and conditions of the contract as well as by the decree determining its construction and effect.
On the other hand the owners of the island were bound to allow the race to be built and kept open for the purposes *Page 294 aforesaid, and were entitled to have it constructed according to the stipulations of the contract. This burden upon the land, affecting directly the estate, would manifestly pass, with all the benefits attached to it, to subsequent owners of the land over which the race was to be constructed. Such subsequent owners would become privies in estate with their grantors who were parties to the contract, and subject to the stipulations and conditions of the contract as determined by the decree. In fine, the subsequent purchasers on both sides are privies in estate with their grantors, and are estopped from denying their mutual rights and interests as adjudged and declared by the court in the action to which their grantors were parties.
These general principles do not seem to be contested; but it is claimed that the defendants are not purchasers subsequent to the contract and decree, but that they are prior purchasers and therefore not in legal privity with the parties to the contract and to the suit. This is the main question in the case. It is admitted that the plaintiff holds under Achilles, who was both a party to the contract and the decree, and that he owned the mills at the time of the decree, but it is now claimed that there was no evidence that he owned them at the time of the contract. It is answer enough that this point was not taken upon the trial when the objection was raised to the admission of the contract. The whole case shows that such was undoubtedly the fact; and had that objection been pointed out it would have been obviated by proof. The plaintiff must therefore be deemed as holding under Achilles, who was owner at the time of the execution of the contract and of entering the decree.
It is conceded that the defendants are now, and were anterior to the time of the injury, the owners of the land at the point where the race now crosses the old channel, which belonged at the time of the execution of the contract to parties to that contract. But they hold under a *Page 295 foreclosure and sale upon a mortgage executed prior to the execution of the contract. Upon such foreclosure the plaintiff was not made a party to the suit, although the foreclosure was subsequent to the contract and the decree.
The question therefore becomes narrowed down to the simple point: whether a purchaser under a foreclosure is deemed to take the title of the mortgagor as of the time of the execution of the mortgage or as of the time of receiving the deed. In whatever aspect the question may be viewed I think it is clear that he succeeds to the rights of the owner of the equity of redemption, as of the time of the execution and delivery of the master's deed, at least as against those who have acquired interests intermediate the execution of the mortgage and the foreclosure and sale.
The owner of the equity of redemption, as the law now stands in this state, is vested substantially with the legal title to the land. At common law, a mortgage was held to be a conveyance upon a condition subsequent, vesting the legal title to the land in the mortgagee. And that is still so in England and in many of our sister states. But in this state, both at law and in equity, the mortgagor is vested for all practical purposes with the title, and the mortgagee holds simply a chose in action, secured by a lien upon the land. Since the Revised Statutes, there is not an attribute left in the mortgagee, before foreclosure, upon which he can make any pretence for a claim of title. For the mere right, where he goes into possession by the consent of the morgagor, to retain possession, is not an attribute of title. He would have the same right in the case of a pledge. "A mortgagor or his assignee in possession may maintain trespass against the mortgagee, and if the defendant reply liberum tenementum, he may reply freehold in himself. (Runyan v. Mersereau, 11Johns., 534.) An outstanding mortgage is not a breach of the covenant of seizin. (Sedgwick v. Hollenback, 7 Johns., 376;Stanard v. Eldridge, 16 id., 255.) The mortgagee has no estate in the land capable of being sold or *Page 296 conveyed. (Aymar v. Bill, 5 J. Ch. R., 570.) He has no interest capable of being sold under execution. (Morris v.Mowatt, 2 Paige, 586.) He holds only a security for the debt (Waring v. Smyth, 2 Barb. Ch. R., 119), and before entry is not bound, as an assignee of the mortgagor, of covenants running with the land. (Id.) His interest is not subject to dower, but goes to the personal representatives as a personal chattel. "It is taxable as such, and may be conveyed without deed by delivery only." The mortgagor is, for every substantial purpose, the owner of the land, and the mortgagee has merely a lien upon it. (Astor v. Miller, 2 Paige, 68; Astor v. Hoyt, 5Wend., 603; Waring v. Smyth, 2 Barb. Ch. R., 119;Calkins v. Calkins, 3 Barb. S.C.R., 305; Gardner v.Heartt, 3 Denio, 232.) Judgments against him are liens upon the land, and it may be sold to satisfy them. He may sell it; charge it with other mortgages. He may create easements, or impose other burthens upon it, which can only be removed by foreclosure making the persons interested parties to the suit. His interest descends to his heirs as real estate, and is subject to dower or tenancy by the curtesy. He may create terms for years or for life in it, which will be vested as against the mortgagee until foreclosure. In Waring v. Smyth (2 Barb. Ch. R., 119) Chancellor WALWORTH said "that a mortgage in this state is nothing but a chose in action or a mere lien or security upon the mortgaged premises, as an incident to the debt itself." So, inGardner v. Heartt (3 Denio, 232) Justice BEARDSLEY says: "A mortgage creates a specific lien on the mortgaged lands, as a judgment duly docketed does a general one on lands of the judgment debtor. But the mortgagee as such has no title to the land mortgaged; he has neither jus in re or jus ad rem, but a mere security for his debt, title to the land, notwithstanding, remaining in the mortgagor."
I have only alluded to a portion of the relative incidents belonging to the interests of the mortgagor and mortgagee, *Page 297 and to but a few of the decisions, with which the reports are full, showing that the interest of the mortgagor is for all substantial purposes the legal title, whilst that of the mortgagee is simply a lien; and I should not have deemed it necessary to have cited any, had not some of my brethren come to a different conclusion from my own upon one point in this case. Upon the assumption that the mortgagee is vested with the legal title to the land, I should have been ready to say, in the language of Lord MANSFIELD (Doug., 632), "that it was an affront to common sense" to say that the mortgagor [in this state] is not the real owner.
It is true the language applicable to their interests as they were deemed to exist at common law, is yet often used in regard to their interests as they now exist, but I venture to say that, since the Revised Statutes, not an adjudication can be found in this state where the interest of a third party has depended upon the question whether the mortgagor or mortgagee was vested with the title, in which it has been determined that the estate was vested in the mortgagee and not in the mortgagor. Whenever this question of title has been material it has uniformly been decided both in the law and in the equity courts, that it was vested, for all substantial purposes, in the mortgagor.
The mortgagors, therefore, in this case, holding the title to the premises, granted to the mill owners the right to construct a race across the land, for which they undertook to build the walls where it crossed the channel at a given height. The mill owners, and their successors in estate, by this grant acquired an easement and became liable to perform the conditions attached to it. The mortgagees having a prior lien might, by making the mill owners parties in the foreclosure suit, have terminated their interests, unless they were willing to redeem. But they chose to leave their interests unimpaired, satisfied, perhaps, that the benefits were equal to the burdens, and did not, therefore, make them parties. The mortgage, therefore, stands unforeclosed as to *Page 298 the rights of the mill owners, but the interest of the mortgagors passed to the purchasers upon the foreclosure; and, exnecessitate, it must be deemed to pass as of the time when it was foreclosed. Suppose the whole premises had been purchased upon such foreclosure by the defendants, the right to insist upon the performance of conditions upon which the mill owners were entitled to the easement would clearly have been no longer vested in the mortgagors. It must, therefore, have vested in the purchasers, otherwise the mill owners would hold the easement free from the conditions upon which it was granted to them. Suppose the easement had been granted for a term of years upon the payment of a periodical rent. Would not the purchasers under the foreclosure sale be entitled to the rent? As the covenant to pay rent would in such case run with the land, the mortgagors, after such sale, would not be entitled to it; and if the purchasers were not entitled to it, the mill owners would be enabled to enjoy the easement free from rent. This manifestly could not be. The rent being attached to the land must necessarily, so long as the tenancy continues, belong to the owner of the fee or the reversion. If the tenant is made a party to the foreclosure, his term or tenancy would be subverted by it, and being, after sale, a mere trespasser, rent would no longer exist. But not being made a party, his term would remain unimpaired, but he would be compelled to attorn to the purchaser under the foreclosure and pay rent to him. And this result, manifestly, from the fact that the purchaser would be in legal privity with the lessor. So far as the interest of the mortgagor is concerned it is divested, upon foreclosure, by virtue of the power of sale contained in the mortgage. Under that power the purchaser of course acquires title, not as of the time of the execution of the instrument granting the power, but as of the time of the execution of the power. He does not hold under the grantee of the power, but directly from the grantor. *Page 299
The same rule applies to a master's sale, where the lien holders subsequent to the mortgage are not made parties, which applied to a sale upon foreclosure by advertisement under the Revised Statutes, and before provision was made for serving notices upon lien holders. (2 R.S., 546.)
In Vroom v. Ditmas (4 Paige, 526), the chancellor held that, under a foreclosure by advertisement, "the purchaser simply acquires the rights of the mortgagor, so far as he has any, as security for the mortgage debt, and also so much of the equity of redemption as was not bound by the lien of mortgages or judgments." It cannot therefore be doubted, I think, that the defendants in this case should be deemed privies in estate with Selye Griffith, the mortgagors, and that the contract and decree were competent evidence upon the trial, in determining the rights of the parties.
I have discussed this question somewhat at length because I deemed it one of great interest, and it seemed to me so entirely free from doubt that the decision of the cause might more obviously be placed upon it. But, independent of this point, the judgment of the court below, I think, must be reversed. The injury to the plaintiff was done by the water which flowed through the new race. The plaintiff, or those under whom he holds, built this new race under an agreement with the owners of the land that the banks or walls thereof, where it crosses the channel, should be of the same height as the other portion of the walls. At this height, I understand, the water could not escape into the old channel. the right, therefore, which the mill owners have to take the water through this new race is not connected with any right to a waste-weir at the point where it crosses the old channel. If the water, at the time of the accident, had come down the old channel a different question perhaps might have arisen. But, passing through the new channel, the plaintiff shows no right, in case of an excess, to have it escape through the old channel. And having no such right, it follows that there is nothing upon which he could predicate an action *Page 300 for damages. Having no right, he cannot complain of any one for disturbing him in the enjoyment of it.
The judgment must therefore be reversed, and a new trial granted.
COMSTOCK and HARRIS, Js., did not sit in the case; SELDEN, J., expressed no opinion; all the other judges concurred in the decision upon the ground last stated in the preceding opinion, expressing no opinions upon the question of estoppel.
Judgment reversed and new trial ordered.