244 MORTGAGE OF STANDING TIMBER 



jurisdictions upon the insolvency of the mortgagor. 1 It has 

 been held that a mortgagee cannot maintain an action 

 against a stranger to the title for negligently injuring the 

 mortgaged premises so that the security is lost, 2 and this 

 rule would evidently apply to a careless burning of timber. 



In an action by the mortgagee to protect his security it is 

 unnecessary that he prove an intention on the part of the 

 mortgagor to impair the security, 3 and the measure of dam- 

 ages will be the injury to the security. 4 For the removal 

 of nursery stock in accordance with the usual course of busi- 

 ness conducted on the land covered by the mortgage the 

 mortgagee can maintain neither an injunction nor an action 

 in law against the mortgagor or his tenant in possession 

 before foreclosure, 5 except where the insolvency of the 

 mortgagor is averred, 6 and for any injury to the freehold 

 which does not affect the security of the mortgage the mort- 

 gagee who does not have title has no action until he obtains 

 possession under a default on the mortgage. 7 



A mortgagee has been permitted to maintain an action of 

 quare clausum fregit, 8 to recover the value of the timber and 

 other things removed from the land in an action of trover or 

 de bonis asportatis, 9 and to recover by replevin that which 

 was removed. 10 Some decisions have held that the value 

 of timber cut by the mortgagor and sold to a purchaser for 

 value without notice of the mortgage cannot be recovered 

 by the mortgagee either in trespass or trover, 11 even where 



1. Morgan v. Gilbert, 2 Fed. 835, 2 Flipp. 645; Contra. Ogden Lumber Co. v. Busse, 



92 N. Y. App. Div. 143, 86 N. Y. Suppl. 1098. 



2. Gardner v. Heartt, 3 Den. (N. Y.) 232. 



3. Van Pelt v. McGraw, 4 N. Y. 110. 



4. Turrell v. Jackson, 39 N. J. L. 329. Woodruff v. Halsey 8 Pick. (Mass.) 333. 



5. Hamilton v. Austin, 36 Hun. (N. Y.) 138; But see, Batterman v. Albright, 122 



N. Y. 484. 



6. Robinson v. Russell, 24 Cal. 467. 



7. Guthrie v. Kahle, 46 Pa. St. 331. 



8. Leavitt v. Eastman, 77 Me. 117; Stowell v. Pike, 2 Me. 387; Smith v. Goodwin, 



2 Me. 173; Sanders v. Reed, 12 N. H. 558; Cf. Dunlap v. Steele, 80 Ala. 424; 

 Boswell v. Carlisle, 70 Ala. 244; Codman v. Freeman, 3 Cush. (Mass.) 306. 



9. Searle v. Sawyer, 127 Mass. 491, 34 Am. Rep. 425; Cole v. Stewart, 11 Cush. 



(Mass.) 181; Frothingham v. McKusick, 24 Me. 403; Burnside v. Twitchell, 

 43 N. H. 390; Angier v. Agnew, 98 Pa. St. 587, 42 Am. Rep. 624. 



10. Dorr v. Dudderar, 88 111. 107; See Mosher v. Vehue, 77 Me. 169; Searle v. Sawyer, 



127 Mass. 491; Replevin lies under Rhode Island Statute: Waterman v. Matte- 

 son, 4 R. I. 539. 



11. Buckout v. Swift, 27 Cal. 433, 83 Am. Dec. 90; Cooper v. Davis, 15 Conn. 556; 



Clark v. Reyburn, 1 Kan. 281; Harris v. Bannon, 78 Ky. 568; Webber v. Ram- 

 sey, 100 Mich. 58, 58 N. W. 625, 43 Am. St. Rep. 429; Hamlin v. Parsons, 

 12 Minn. 108, 90 Am. Dec. 284; Kircher v. Schalk, 39 N. J. L. 335; Wilson v. 

 (Footnote 11 continued on next page) 



