INTEREST OF MORTGAGEE 245 



the legal title is in the mortgagee ; and other cases have held 

 that a bona fide purchaser for value from, the mortgagor 

 takes the timber subject to the paramount rights of the 

 mortgagee, 1 except where the mortgagee has waived his 

 prior claim. 2 



The rights of a mortgagor as to cutting timber prior to 

 foreclosure may be limited by a covenant in the mortgage 

 not to cut for sale or not to cut more than a certain amount, 3 

 or an agreement to apply the proceeds of the timber cut 

 on the debt secured by the mortgage. 4 A license by the 

 mortgagor for the cutting of timber for specific purposes will 

 not excuse a use of the proceeds for a different purpose. 5 



161. Remedies Available to Mortgagee After Fore- 

 closure. Some decisions have held that a mortgagee has 

 no action for damages until after a default by the mortgagor 

 and a showing through foreclosure that the security of the 

 mortgage is insufficient to cover the mortgage debt, G but 

 such a rule manifestly does not afford the mortgagee a sat- 

 isfactory protection. If upon foreclosure the property does 

 not bring enough to satisfy the mortgage, .the mortgagee has 

 an action against the mortgagor for any cutting of timber 

 which substantially impaired the security, 7 but there is con- 

 flict of authority as to whether the mortgagee may after 

 foreclosure recover damages from the mortgagor for sub- 

 stantial injuries to the property before foreclosure which did 

 not impair the security, some cases holding that he may re- 

 cover 8 and some that he may not. 9 



(Footnote 11 concluded from preceding page) 



Maltby, 59 N. Y. 120; Peterson v. Clark, 15 Johns. ^ T . Y.) 205; Of. Atkinson 

 v. Hewett, 03 Wis. 390, 23 N. W. 889. (In which purchaser knew of mort- 

 gage and timber formed chief value of the land) ; and Searle v. Sawyer, 127 

 Mass. 491, 34 Am. Hep. 425. 



1. Gore v. Jenness, 19 Me. 53; Mosher v. Vcluie, 77 Me. 109; Howe v. Wadsworth, 



59 N. H. 397; Cf. Banton v. Shoroy. 77 Mo. 48. 



2. Kimball v. Lewiston Steam Mill Co., 55 Me. 494. 



3. Moisant v. McPhee, 92 Cal. 70, 28 Pac. 40; Wood v. Lester, 29 Barb. (N. Y.) 



145; Chard v. Warren, 122 N. C. 75, 29 S. K. 373; Mann v. English, 38 U. C. 

 Q. B. 240. 



4. Howe v. Russell, 30 Me. 115; Frcdonia Nat'l Bank v. Perrin, 172 Pa. St. 15. 



33 Atl. 351. 



5. Holbrook v. Greene, 98 Me. 171, 50 Atl. 059. 



6. Cooper v. Davis, 15 Conn. 550; Taylor v. McConnell, 53 Mich. 587; Peterson v. 



Clark, 15 Johns. (N. Y.) 205; See Lane v. Hitchcock, 14 Johns (N. Y.) 213; 

 Gardner v. Heartt, 3 Denio (N. Y.) 232. 



7. Heitcamp v. La Motto Granite Co., 59 Mo. App. 244; Jones v. Costigan, 12 



Wis. 677, 78 Am. Dec. 771. 



8. Byrom v. Chapin, 113 Mass. 308. 



9. Corbin v. Reed, 43 Iowa 459. 



