Osgood v. Pollard

It is clear that a mortgagee, rightfully in possession of the mortgaged property, is entitled to the income of it; and no distinction can be drawn, in this respect, between such possession before and possession after a breach of the condition of the mortgage. But in either case, if the property is redeemed, the income is to be applied in payment of the mortgage debt. Here the mortgage expressly gave the defendant the right to take possession before the note secured by it became due. He, therefore, rightfully used the property, and the plaintiff, if he had redeemed, would have been entitled to a credit for such use. But the plaintiff did not redeem. The defendant foreclosed by a sale, which was the proper method. If the plaintiff, on these facts, is entitled to recover any thing, it is not for the use of the property by the defendant, but for such balance of the money received from the sale as may remain over and above the debt and charges, the value of the use being applied as part payment.

A mortgagee of real estate, who has possession and *273takes the profits, and subsequently forecloses his mortgage by a strict foreclosure, is not subject to an action for the mesne profits. Nor can he bo charged with a balance, even if the value of the property on the foreclosure is greater than the debt. The mortgagor must, in such ease, protect himself by a redemption. The land,— an entire thing, — has been applied in discharge, and the mortgagee does not become a debtor.

It may be different where the foreclosure is by a sale, because, in such case, the money received on the sale is applied in discharge; and if the proceeds of the sale amount to more than the debt, no more is applied than is sufficient for the payment, and the mortgagor is entitled to the balance. If the mortgagee, in such ease, has received profits, he may be accountable for them towards the payment of the debt, in ascertaining whether there is a balance after applying the proceeds of the sale to the payment of the debt.

The plaintiff', in this case, having brought his suit for the use of the cow, for which use he is not entitled to recover, there must be

Judgment for the defendant.