The Margaret.

of liability appears to us to turn upon whether the tug or the schooner is responsible for so much after sail being carried from the time when the turn was made to come in.

The tow was from 120 to 180 feet in the rear of the tug. It was in the night, and in our opinion, unless the tug had assumed to take entire control and direction of the vessel, it was the latter's fault if she had up part of her mainsail. To apply such rule is to do no more than to require of the captain of the schooner the exercise of that measure of care and skill which is incumbent on the tow.

The Margaret, 94 U.
In the latter case it

S. 496; The Margaret, 5 Bissell, 357.
is said there are certain duties incumbent on those who have

the management of the tow. It is the duty of the tow to be
steered properly; to follow in the wake of the tug, and to
perform all those duties which nautical skill demands in
order to properly manage the tow.

It is manifest that if the tow, at a critical point, when about to enter the harbor, carries such sail as to take her out of the control of the towing craft, either as to her head way or course, the tug should not be held at fault for any disaster that ensues.

We entertain the opinion that the libel should be dismissed, and decree accordingly, with costs to claimant.

Morgan. Gilbert.

MORGAN v. GILBERT.

CIRCUIT COURT-WESTERN DISTRICT OF MICHIGAN-APRIL 22, 1880.

MORTGAGEOR INSOLVENT-WHAT MORTGAGEE MAY DO.

If the mortgageor is insolvent, the mortgagee may, where there is an unauthorized injury to the mortgage security, maintain an action

The action was trespass on the case.

Simonds & Fletcher represented the plaintiff.

Champlin & More, the defendant.

WITHEY, J.-On the second of January, 1875, the members composing the firm of Colby & Co., owned and mortgaged lands to plaintiff to secure the payment of $25,000; among other lands lot No. 2, of section 10 north, of range 7 west, situated in Montcalm county, Michigan, on which was pine timber constituting the principal value of the premises. Ten thousand dollars, with interest, were payable July 2, 1876, and ($15,000) fifteen thousand, with interest, January 2, 1877. In January, 1878, while the mortgage remained wholly unpaid, defendant entered upon said premises, and cut and removed 600,000 feet, board measure, of pine timber, of the value of $1,300, or two dollars per 1,000 feet. was without the knowledge of plaintiff, who alleges that thereby defendant "greatly injured and damaged said premises," etc., "whereby the plaintiff's security for the said sum of $25,000 and interest was greatly lessened, impaired and destroyed, to plaintiff's damage," etc.

Defendant pleaded the general issue.

It

Morgan Gilbert.

It appears that defendant and the mortgageors, after the date of the mortgage, agreed to exchange the pine upon their respective lands for convenience in hauling, defendant to pay $1,000 as the difference in value; he to have the pine in question. Defendant paid part of the $1,000 to the mortgageors, Colby & Co., and the balance was subsequently paid to their assignees in bankruptcy.

When the mortgage was given there were over 13,000,000 feet of pine timber on the mortgaged land. At the time defendant took the timber in question from this particular lot, the quantity remaining on the entire tract had been reduced to about 6,500,000 feet by Colby & Co., in their lumbering business, and with the knowledge and consent of plaintiff, but upon an understanding between them not necessary or material to be stated.

It further appeared that at the time of the agreement to exchange timber, defendant was informed by Colby & Co. that they had no right to permit the timber to be cut without the consent of the mortgagee.

There was a prior mortgage upon the lands covered by plaintiff's mortgage of $10,000, which plaintiff bought for $6,000, subsequent to the alleged trespass, and caused to be discharged of record.

Pending a suit by the mortgagee to foreclose the $25,000 mortgage, and prior to bringing this suit, but subsequent to the alleged trespass, he accepted a quit-claim deed of the mortgaged premises from the assignees in bankruptcy of the mortgageors, 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 incumbrance $6,000; making, as the total lien, $38,875.

The value of the security is shown to have been as follows:

Morgan v. Gilbert.

On the mortgaged land was a steam mill worth.... $20,000 Six million, five hundred thousand feet of pine

timber, at two dollars

Value of the land without the timber...

13,000

1,964

$34,964

From which it appears the value of the security did not equal the amount of the lien by nearly $4,000.

The declaration counts upon damages to the premises and to plaintiff's security, and it is claimed, that any reduction of the mortgagee's security gives the right of action. We are of the 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 mortgagee, who may sue for an injury affecting the mortgaged estate, though not in possession, and the owner of the equity of redemption has no more right than a stranger to impair the security of a mortgagee by permanent injury and depreciation 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 fuil benefit of the entire mortgaged estate for the full payment of his entire debt. Gooding v. Shea, 103 Mass. 360; Byron v. Chapin, 113 Id. 308. See, also, Sanders v. Reed, 12 N. H. 558; Smith v. Moore, 11 N. H. 551; 5 N. H. 54; and Hutchins v. King, 1 Wall. 54. But in Kings v. Bangs, 120 Mass. 514, it was held, in an action by the mortgagee against one who had injured the mortgaged property by removal of fixtures, that evidence that the mortgagee under the power in his mortgage sold the premises for more than enough to pay his debt and all prior incumbrances, is admissible in mitiga tion of damages.

Morgan v. Gilbert.

In Illinois the mortgagee is held to be the owner of the fee, as against the mortgageor or those claiming under him, and may have an injunction to stay waste upon the mortgaged lands. He is entitled to all the rights and remedies which the law gives to an owner. Nelson v. Pinegar, 30

Ill. 473.

In New York a mortgage constitutes a lien upon and does not vest title to the land in the mortgagee. This is the law in Michigan, where the title remains in the mortgageor. Wherever such is the relation of mortgageor and mortgagee to the mortgaged property, the rule is that the mortgagee may maintain suit against one who impairs his security, and the damages are limited to the amount of injury to the mortgaged security, however great the injury to the land may be. Van Pelt v. McGraw, 4 Comstock, 110. It has been, in some cases, held necessary to show that the mortgageor is insolvent or not personally responsible for the debt. See Gardiner v. Heartt, 3 Denio, 232; Same v. Hitchcock, 14 John. 213; Yates v. Joyce, 11 John. 136; Wilson v. Maltby, 59 N. Y. 126; Jones v. Costigan, 12 Wis. 757; Buckout v. Swift, 27 Cal. 436.

Upon the general doctrine as stated, where title remains in the mortgageor, see State v. Weston, 17 Wis. 757; Jones v. Costigan, 12 Wis. 757. Jackson v. Turrell, 39 N. J. 329, is a well considered case. It is not necessary to say what the rule would be in Michigan in a suit by a mortgagee, when the mortgageor is personally liable and pecuniarily responsible. In the case at bar the mortgageors are insolv ent. One case lays stress upon the intent with which the injury was committed, (Gardiner v. Heartt, 3 Denio, 232,) which we do not follow.

We are not aware of any decision by the Supreme Court of Michigan, touching the right of a mortgagee to maintain an action for an injury either to the mortgaged premises or