CHAPTER XV ||| 



STANDING TIMBER AS INCLUDED IN A MORT- 

 GAGE 



159. The Legal Effect of a Realty Mortgage. At 



common law a mortgage of real estate was in effect a con- 

 veyance of the realty to the creditor. This conveyance was 

 subject to defeasance upon the fulfillment of the obligation 

 of the mortgagor to the mortgagee, and immediately upon 

 the payment of the debt the title to the land reverted to the 

 mortgagor. However, the common law has not found 

 favor with American courts and legislatures and in most 

 American jurisdictions a mortgage on real estate is merely 

 a lien on the realty for the payment of the debt secured by 

 the mortgage. Under a mortgage of this character the title 

 to the property does not pass until the mortgage is fore- 

 closed, but upon foreclosure the title, for many purposes, 

 relates back to the time when the mortgage was originally 

 executed. * 



A mortgage on land covers the growing timber standing 

 upon the land, 2 unless such timber is excepted by the terms 

 of the mortgage or it has been constructively severed prior 

 to the giving of the mortgage and the mortgagee had notice 

 of such severance. 3 Standing timber may be mortgaged 

 separate from the land, but such a mortgage has been held 

 to be a mortgage of realty. 4 



Under the common law theory of a mortgage which held 

 the legal title vested in the mortgagee until the debt was dis- 

 charged and which still prevails in some American States, 



1. Batterman v. Albright, 122 N. Y. 484, 25 N. E. 856, 19 Am. St. Rep. 510, 11 



L. R. A. 800; Hamilton v. Austin, 36 Hun. (N. Y.) 138. 



2. Maples v. Millon, 31 Conn. 598, Adams v. Beadle, 47 Iowa 439, 29 Am. Rep. 



487; Hutchings v. King, 1 Wall. (U. S.) 53, 17 L. Ed. 544; In re Bruce 4 Fed. 

 Cas. No. 2045, 9 Ben. 236. 



3. Moisant v. McPhee, 92 Cal. 76, 28 Pac. 46; Mercantile Trust Co. v. Southern 



States Land etc. Co., 86 Fed. 711, 30 C. C. A. 349. 



4. Williams v. Hyde, 98 Mich. 152, 57 N. W. 98. 



241 



