Page:Federal Reporter, 1st Series, Volume 2.djvu/844

MORGAN V. GILBEET. 837 �plaintiff's mortgage of $10,000, which plaintiff bought for $6,000, subsequent to the alleged trespass, and caused to be discharged of ïecord. �Pending a suit by the mortgagee to foreclose the $25,000 mortgage, and prior to bringhig this suit, but subsequent to the alleged trespass, he accepted a quitclaim deed of the mortgaged premises from the assignees in bankruptcy of the mortgagoïs, whereby the mortgage and the debt became merged in the fee thus acquired. �At the time the timber was taken there was due on the mortgage, of principal and interest, about $32,875 ; amount plaintiff paid for prior encumbrance, $6,000; making, as the •total lien, $38,875. �The value of the security is shown to have been as foUows : On the mortgaged land was a steam mill worth - $20,000 Six million five hundred thousand feet of pine tim- ber, at two dollars, - - - -13,000 Value of the land without the timber, • . 1,964 ���$34,964: From which it appears the value of the security did not equai the amount of the lien into uearly $4,000. �The declaration counts upon damages to the premises and to plaintia's security, and it is claimed that any reduction of the mortgagee' s security gives the right of action. �We are of opinion that if plaintiff can recover it must be for an injury to his security, and on the ground that it was inadequate. In Massachusetts the legal title is in the mort- gagee, who may sue for an injury aiïecting the mortgaged estate, though not in possession, and the owner of the equity of redemption bas no more right than a stranger to impair the security of a mortgagee by permanent injury and depreci- ation of the mortgaged estate. It has there been held that the damages are measured by the extent of injury to the property, and do not depend upon proof of the insufficiency of the remaining security ; that the mortgagee is not obliged to accept what remains, but is entitled to the full benefit of the entire mortgaged estate for the full payment of his entire ����