246 MORTGAGE OF STANDING TIMBER 



A mortgagor of a farm who remains in possession after a 

 default on the mortgage may cut timber for fire wood, re- 

 pairs and other uses which accord with good husbandry. 1 



It is the duty of the jury to determine whether the cutting 

 of timber on mortgaged land is wrongful. 2 



162. Limitations upon Use and Sale of Timber 

 when Mortgagee is in Possession of Land. A mortga- 

 gee who is lawfully in possession may cut timber for ordin- 

 ary uses on the premises and may cut and sell timber for the 

 purpose of satisfying the debt provided he does no permanent 

 injury to the property 3 and he may recover from a stranger 

 for a timber trespass, 4 but in both instances he can be com- 

 pelled by the mortgagor to account for the proceeds as 

 profits received. It has been held that prior to foreclosure 

 a mortgagee in possession cannot sell nursery trees growing 

 on the premises and covered by the mortgage. 5 Injunc- 

 tion will be granted a mortgagor to restrain a mortgagee 

 in possession from committing waste, 6 and for acts of waste 

 in the cutting of timber an accounting will be decreed. 7 



163. Rights in Timber After Foreclosure of Mort- 

 gage on Land. Prior to foreclosure a mortgagor, who has 

 the legal title to the mortgaged premises, may convey what- 

 ever interest he has in land or timber subject, of course, to 

 the lien of the mortgage; but trees which are standing upon 

 land at the time of a foreclosure sale belong to the pur- 

 chaser at such sale, even though the mortgagor had pre- 

 viously contracted to sell them and the mortgagee had re- 

 leased his Hen upon the trees, unless the purchaser at the 

 foreclosure sale knew at the time of his purchase that the 



1. Judkins v. Woodman. 81 Me. 351, 17 Atl. 298, 3 L. R. A. 607; Hapgood v. Blood. 



11 Gray (Mass.) 400; Wright v. Lake, 30 Vt. 206; Cf. Estovers, Smith v. Jewett, 

 40 N. H. 530; 2 Blackstone Com. 35. 



2. Searle v. Sawyer, 127 Mass. 491, 34 Am. Rep. 425. 



3. Place v. Sawtell, 142 Mass. 477, 8 N. E. 343; Carson v. Griffin, UN. Brunsw. 244. 



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



5. Dubois v. Bowles, 30 Colo. 44, 69 Pac. 1067. 



6. Youle v. Richards, 1 N. J. Eq. 534, 23 Am. Dec. 722; Givens v. McCalmont, 4 



Watts (Pa.) 460; Farrant v. Lovel, 3 Atk. (Eng.) 723. 



7. American Freehold Land Mortg. Co. v. Pollard, 132 Ala. 155, 32 So. 630; Perdue 



v. Brooks, 85 Ala. 459, 5 So. 126; Gore v. Jenness, 19 Me. 53; Steinhoff v. 

 Brown, 11 Grant Ch. (U. C.) 114; Sandon v. Hooper, 6 Beav. 246; See Harrill 

 v. Stapleton, 55 Ark. 1, 16 S. W. 474. 

 cf. Tucker Benev. diet, 116 La. 968. 41 So. 226. 



