1 natural, and probable consequences of his own acts. If therefore one voluntarily or willfully does an act which has a direct tendency to destroy anothers life, the natural and necessary conclusion from the act is that he intended so to destroy such person's life. So if the direct tendency of the willful act is to do another some great bodily harm, and death in fact follows, as a natural and probable consequence of the act, it is presumed that he intended such consequence, and he must stand legally responsible for it. So where a dangerous and deadly weapon is used, with violence, upon the person of another, as this has a direct tendency to destroy life, or do some great bodily harm to the person assailed, the intention to take life or do him some great bodily harm is a necessary conclusion from the act." And to the same effect is the language of the chief justice of Pennsylvania: "He who uses upon the body of another at some vital part with a manifest intention to use it upon him, a deadly weapon, as an axe, a gun, a knife or a pistol, must in the absence of qualifying facts be presumed to know that his blow is likely to kill; and knowing this must be presumed to intend the death which is the probable and ordinary consequence of such an act."(23) In case 2 it was said: "If one were to fire a loaded gun into a crowd, or throw a piece of heavy timber from the top of a house into a street filled with people, the law would infer malice from the wickedness of the act; so also the law will imply that the prisoner intended the natural and probable consequence of his own act, as in the case of shooting a gun into a crowd, the law will imply from the wantonness of the act, that he intended to kill some one, though it might have been done in sport. If the prisoner's object had been nothing more than to make Carter's horse throw him, and he had used such means only as were appropriate to that end, then there would have been some reason for applying to his case the distinction. * But in this case the act indicated an intention to kill-it was calculated to produce that effect and no other--death was the probable consequence and did result from it." * * "If a man raises his rifle and deliberately fires its contents into the bosom of another, or by a blow with an axe, which might fell an ox. buries it in the brain of another, the inference from the act is irresistible that death was meant, and so the law presumes. "The inferences of the mind, which are equally presumptions of law, are certain and conclusive in proportion as the acts, from their nature and character, are certain to result in death. "Thus the plunging of a poniard into the heart of another, we do not doubt, was intended to kill, but if aimed only at the arm or leg, though death may be the result, yet the mere fact of giving such a blow, so long as that is the only criterion by which we judge, renders the intent more doubtful and the inference less strong. So if one beat a full-grown man with his fist, and death ensues, we wouid ordinarily feel far more doubt that death was intended than if it had been produced by the use of a dangerous weapon. So too regard may be had to the relative strength and powers of endurance of the parties, as well as to the mode in which the violence is applied. "A powerful blow given by the fist alone (but not repeated) upon the head of a full-grown man would not ordinarily be regarded as intended to produce death; but what else could be inferred if the same blow were planted upon the temple of an infant child? "In many cases the inference that death is intended is as strong when the act is perpetrated by a drunken as when perpetrated by a sober man. Thus if by a deadly weapon, as by a rifle or a bowie-knife, a bullet (23) Agnew, C. J., in Com. v. Drum, 58 Penn. St. 17 (1868). or blow is sent directly or designedly to some vital spot, we should infer that death was intended with almost equal certainty, whether the perpetrator were drunk or sober. So too when death is produced by poison, and we see in the mode of its administration stealthy calculation, we would infer that death was intended, whether he who administered the poison was in a state of sobriety or intoxication, since in the very character of the act we could read design. "But we also know that intoxication produces more effect upon the nervous system of some than of others. It clouds and obscures the judgment of one more than it does another. It produces greater extravagance of exertion and action in some than it does in others, and sometimes consequences result from such extravagant exertion and action of which the party himself had no idea. All these things are to be considered by this jury when determining upon this question of intent." The rule that a man must be supposed to intend the natural results of his act is said by Hubbard, J., to be by no means an infallible proposition, though often treated as an axiom. "The result is not always evidence of the supposed intent. When we look back upon events that have happened we stand in a different position, we behold with a clearer vision, as we embrace within our glance the beginning and the end, the act and the consequence. But the man who is doing the act may contemplate a very different result. His feelings may be biassed by his wishes, and sanguine feelings may be the cause of overlooking difficulties which to a more quiet temperment might appear insurmountable. Disappointments also may take place which were not anticipated. (24) "It has been urged," said Comstock, J., in Curtis v. Leavitt, (25) "that the debtor corporation must be deemed to have intended the result of its own acts. This is very often a useful rule of evidence in arriving at a conclusion upon a question of motive and intention, but it is not a rule of law. If a given result must, by plain and absolute necessity, follow from a particular action, or if it be so likely to follow that no two minds of equal intelligence could differ in conclusion, viewing the subject from the same point of observation as the actor himself, then there would be no injustice in holding that he intended such result. Still the question is one of fact; what was the intent? And in Quinebang Bank v. Brewster, (26) Sanford, J., said: "The intention of a party is a fact to be proved as all other facts are proved, not indeed necessarily by direct evidence, but either by direct evidence or by the proof of other facts indicative of such intention, and from which facts its actual existence and operation may be inferred. The law makes no conclusive presumption in regard to it. Indeed the law never conclusively presumes that a person intended to violate the law or commit a fraud. The act done and the circumstances attending its commission may indicate more or less clearly the intention of the party doing it, and authorize an inference of more or less weight in regard to such intention." RULE III. But when a specific intent is required to make an act an offense, the doing of the act does not raise a presumption that it was done with the specific intent. ILLUSTRATIONS. 1. R. is charged with assaulting with intent to murder one E. It is proved that R. fired a loaded pistol at (24) Jones v. Howland, 8 Metc. 306 (1844). E. There is no presumption that R. intended to murder E.(27) 2. A statute makes a willful, deliberate and premeditated killing, murder in the first degree. B. kills C. There is no presumption that the killing was deliberate and premeditated. (28) In case 1 it was said: "The general rule is well settled, to which there are few if any exceptions, that when a statute makes an offense to consist of an act combined with a particular intent, that intent is just as necessary to be proved as the act itself and must be found by the jury, as matter of fact, before a conviction can be had. But especially when the offense created by the statute, consisting of the act and the intent, constitutes as in the present case, substantially an attempt to commit some higher offense than that which the defendant has succeeded in accomplishing by it, we are aware of no well founded exceptions to the rule above stated, and in all such cases the particular intent must be proved to the satisfaction of the jury and no intent in law or mere legal presumption, differing from the intent in fact can be allowed to supply the place of the latter." RULE IV. The law presumes an intent from acts in the absence of declarations (a) where the party is physically and mentally capable of forming an intent.(b) ILLUSTRATIONS. (A.) 1. The question was whether a certain incumbrance was intended to be excepted from a covenant against incumbrances in a deed. It appeared that the incumbrance in question was notorious and of long standing, and no mention of it was made in the deed. The presumption was that it was intended to be excepted. (29) 2. In case 1 it appeared that nothing was said by the parties in reference to the incumbrance. The presumption of an intention to except it is raised from these acts above.(30) In case 1 it was said: "From the existence and notoriety of the incumbrance, its long standing and the long acquaintance of the parties with it as a permanent thing, the fact that no mention was made of it in the negotiation, though other incumbrances were mentioned in the deed and excepted, the committee drew the inference that it was the intention of the parties that it should be excepted from the deed. *** The argument in favor of the finding of the committee is very strong. An express warranty on the sale of personal chattels does not apply to visible defects, because the fact that the defect was plainly visible is evidence that the purchaser knew it, and did not take his warranty on account of it. This principle does not apply in the case of a warranty by deed, because the terms of a deed cannot be contradicted or varied by parol, and undoubtedly a man may, if he will be so foolhardy, make an express warranty in a deed, where he knows that it is broken at the moment the deed is delivered, and knows also that the fact is well known to the party to whom he gives it. But ordinarily we suppose that parties do not in this open way intentionally involve themselves in lawsuits. And we do not see why the plain, open visible, and notorious character of this incumbrance, connected as it was with full knowledge of the parties of its existence, does not furnish evidence that it was not intended by the parties to be warranted against upon a (27) Roberts v. People, 19 Mich. 401 (1870); Mayher v. People, 10 id, 212 (1862). (28) Com. v. Dunn, 58 Penn. St. 9 (1876); State v. Mitchell, 64 Mo. 191 (1876); State v. Foster, 61 id. 549 (1876); State v. Lane, 64 id. 319 (1876); Hamby v. State, 36 Tex. 523 (1872). (29) Knapp v. White, 23 Conn, 529 (1855). (30) Id, principle analogous to that which applies to visible defects in the sale of personal chattels by parol." In case 2 it was said: "The defendant's counsel seem to suppose that there could have been no intention to except the right to maintain the ditch from the deed, because the parties said nothing about it. But courts will often find decisions and judgments upon the presumed intention of the parties where nothing has been said. A man is presumed to intend the natural and probable consequence of what he does; and on this principle many persons have been found guilty of the highest crimes. A man is presumed to accept of a conveyance of property made to him, on the ground that it being for his benefit he would naturally wish to receive it; and on this principle titles have been established. Indeed we always draw inferences from our observation of the usual habits of men which lead to a great variety of presumptions. These inferences are the conclusions drawn by reason and common sense from premises established by proof; and are as applicable to questions of intention where the intention of parties becomes important as to any other disputable fact. It is true, as remarked by Judge Story, that if the proofs are doubtful and unsatisfactory, and the mistake is not made entirely plain, equity will withhold relief on the ground that the written paper ought to be treated as a full and correct expression of the intent, until the contrary is established beyond reasonable controversy. But this does not mean that there must always exist direct and positive proof that the instrument does not express the true intent of the parties in order to justify the court in reforming it. To give any such construction to the rule would be to deny any right in a court of equity to interfere unless the instrument could be shown to vary from written memoranda of the terms of the contract from which it is drawn up, or some evidence equally decisive. We do not so understand the rule." (B.). 1. A. is indicted for burglary. It is proved that A. broke and entered a store in the night-time. The presumption is that A. intended to commit a burglary. A. shows that he was at the time too drunk to have entertained such an intent. The presumption of intent no longer arises.(31) 2. R. is indicted for shooting at S. with intent to kill him. R. shot at S. while in a state of intoxication. The guilt of R. turns on the question whether R. was in such a state of mind as to be able to form au intent.(32) In case 2, Coleridge, J., said: "There are two points for your consideration, first, as to the act; second, as to the intent. With regard to the latter, the allegation respecting it in the indictment must, no doubt, be proved to your satisfaction before you can find the prisoner guilty upon the full charge. The inquiry as to intent is far less simple than that as to whether an act has been committed, because you cannot look into a man's mind to see what was passing there at any given time. What he intends can only be judged of by what he does or says, and if he says nothing then his acts alone must guide you to your decision. It is a general rule in criminal law, and one founded on common sense, that juries are to presume a man to do what is the natural consequence of his act. The consequence is sometimes so apparent as to leave no doubt of the intention. A man could not put a pistol (31) Ingalls v. State, 48 Wis. 647 (1879); Wood v. State, 34 Ark. 341 (1879); Roberts v. People, 19 Mich. 401 (1870); State v. Bell, 29 Iowa. 316 (1870); State v. Maxwell, 42 id. 208 (1875); Wenz v. State, 1 Tex. App., 36 (1876); Loza v. State, id. 488 (1877); U. S. v. Bowen, 4 Cranch C. C. 604 (1835); State v. Coleman, 27 La. Ann. 691 (1875); State v. Trivas, 32 id. 1086; 36 Am. Rep. 293 (1880). (32) R. v. Monkhouse, 4 Cox, 55. while he knew it to be loaded to another's head, and fire it off. without intending to kill him; but even then the state of mind of the party is most material to be considered. For instance, if such an act were to be done by a born idiot, the intent to kill could not be inferred from the act. So if the defendant is proved to have been intoxicated, the question becomes a more subtle one; but it is of the same kind, namely, was he rendered by intoxication entirely incapable of forming the intent charged? The case cited is one of great authority, from the eminence of the judge who decided it. The only difficulty is, in knowing whether we get the exact words of the judge from the case quoted; and even if we do, whether all the facts are stated which induce him to lay down the particular rule. Although I agree with the substance of what my brother Patteson is reported to have said, I am not so clear (33) as to the propriety of adopting the very words. If he said that the jury could not find the intent without being satisfied it existed, I shall so lay it down to you: the only difference between us is as to the amount and nature of the proof sufficient to justify you in coming to such a conclusion. Under such circumstances as these when the act is unambiguous, if the defendant was sober, I should have no difficulty in directing you that he had the intent to take away life, where if death had ensued the crime would have been murder. Drunkenness is ordinarily neither a defense nor excuse for crime, and where it is available as a partial answer to a charge it rests on the prisoner to prove it, and it is not enough that he was excited or rendered more irritable unless the intoxication was such as to prevent him from restraining himself from committing the action in question, or to take away from him the power of forming any specific intention. Such a state of drunkenness may no doubt exist." RULE V. A person is presumed to intend to do what is within his right and power rather than what is beyond them. ILLUSTRATIONS. A., B. and C. were the devisees of an estate for life to become one in fee on the death of D. They made a division of the estate. The question was whether they had divided the life estate or the estate in fee. Held, the presumption was that it was the former. (34) * * * "It is a natural presumption," it was said in case 1, "that men intend to do that which they have a right and power to do rather than what is beyond their right or power. The division was of course meant to be a complete one of whatever was divided unless the contrary appears. The life estate could have been completely divided at that time, nothing else being necessary to render it perfect, but the remainder could not have been so divided at that time, for that division could not have been completed till the death of D. * * This presumption must prevail until rebutted by affirmative contrary evidence." ST. LOUIS, Mo. JOHN D. LAWSON. The American cases sustain the rule that as long as the mortgagor is allowed to remain in possession he is entitled to receive and apply to his own use the income and profits of the mortgaged estate; and although the mortgagee may have the right to take possession upon condition broken, if he does not exercise the right he cannot claim the rents; if he wishes to receive them he must take means to obtain possession by foreclosure. IN N error to the Circuit Court of the United States for the District of Oregon. This was an action at law brought by Walker, the defendant in error, against Teal, the plaintiff in error. The record disclosed the following facts: On August 19, 1874, Bernard Goldsmith borrowed of James D. Walker the sum of $100,000, and gave the latter his note, dated Portland, Oreg., August 19, 1874, for the payment to Walker or his order two years after date of the sum borrowed, with interest payable monthly at the rate of one per cent per month from date until paid. Goldsmith at the time the note was executed, was the owner in fee of certain lands in the State of Oregon and in the Territory of Washington, and he and Joseph Teal were the joint owners and tenants in common of certain other lands in Oregon. On August 19, 1874, Goldsmith conveyed to one Henry Hewett, by four several deeds, absolute on their face, the lands in Oregon and in Washington Territory of which he was the sole owner, and on the same day he and Teal executed and delivered to the same grantee three several deeds, absolute on their face, for the lands which they jointly owned as tenants in common, one being for lands in Linn county, another for contiguous lands in Polk and Benton counties, and the third for lands in Clackamas county, all in the State of Oregon. These deeds were intended as a security for the above-mentioned note, as appeared by a defeasance in writing, executed on the same day as the note by Goldsmith, Teal, Hewett and Walker. This instrument, after reciting the execution of the note above mentioned, declared that Hewett held the legal title to the lands couveyed to him as aforesaid, in trust and for the uses therein described. It then declared as follows: "Sub. ject to the legal title of Hewett, Teal and Goldsmith, or Goldsmith alone, shall (1) retain possession of the lands, and take and have, without account, the issues and profits thereof, they paying all taxes and public charges imposed thereon, until said note shall become due and remain unpaid thirty days; (2) that if such default is made in the payment of said note, Goldsmith and Teal'will and shall, on demand, peacefully surrender to Hewitt' the possession of said property, who 'may and shall proceed to take possession' of the same, 'and on thirty days' notice in writing to Teal and Goldsmith * * ** requiring them to pay said debt, * and on their failure so to pay shall sell the some at public auction on not more than thirty days' notice,' or sufficient thereof to pay the debt and charges." * * * The instrument further declared "that if the aboverecited promissory note, and the interest thereon, and all the taxes, charges and assessments on said land be duly paid by said Goldsmith, or for him, then the deeds MORTGAGE MERE SECURITY-MORTGAGEE NOT aforesaid shall be void, and said Hewett, or his repre ENTITLED TO RENTS. SUPREME COURT OF THE UNITED STATES, APRIL 7, 1884. TEAL V. WALKER. A deed absolute on its face, but intended as a security for the payment of money, is a mortgage even at law, if accompanied by a separate contemporaneous agreement in writing to reconvey upon the payment of the debt. (33) In R. v. Cruse, 8 C. & P. 546. (34) Pool v. Morris, 29 Ga. 375 (1859). sentatives or successors in trust, shall reconvey all said lands, and every part thereof, to said Teal and Goldsmith, or said Goldsmith, or their representatives, en. titled thereto." On October 18, 1876, there was due and unpaid upon the note made by and delivered by Goldsmith to Walker the sum of $96,750. To secure an extension of time of one year from that date for the payment of the note, Goldsmith and Teal agreed to give further security for its payment. Thereupon Goldsmith conveyed by a deed absolute on its face to Hewett certain lots in the city of Port land, of which he was the owner, and Goldsmith and Teal by a like deed conveyed to Hewett certain lots in Portland and certain lands in Linn county, Oregon, of which they were joint owners and tenants in common. On the same day, October 18, 1876, Walker, Hewett, Goldsmith and Teal executed another defeasance, in which, after reciting the conveyances by Goldsmith, and Goldsmith and Teal, above mentioned, declared that Hewett held the legal title to lands so conveyed in trust, and to the same uses and purposes for which he held the lauds mentioned in the defeasance of August 19, 1874. By this instrument Goldsmith and Teal undertook and agreed that Goldsmith should pay promptly one-twelfth of ten per cent per annum of the interest of the note every month, and should pay the principal and the residue of the interest at the end of the year. It was further stipulated between the parties that if default was made in the payment of the monthly installments of interest the principal should immediately become due, and all the property, both that conveyed August 19, 1874, and that conveyed October 18, 1876, should be sold for the payment thereof, as by law and the agreement of August 19, 1874, was provided. The instrument of October 18, 1876, further provided as follows: "The agreement of August 19, 1874, is not annulled, vacated or set aside by the execution of this agreement, excepting in so far as the same may conflict with this agreement; in all other respects the two instruments are to be taken and construed together." Interest was paid on the note made by Goldsmith to the plaintiff up to January 21, 1877, but none after that, date. In April, 1877, Goldsmith conveyed to Teal all his estate in the lands which he had conveyed in trust to Hewett by the deeds of August 19, 1874, and October 18, 1878, and put Teal in possession thereof. On July 6, 1977, the interest on the note being in arrear since January 21 preceding, Hewett demanded of Teal the possession of all the property conveyed by said deeds. He refused to yield possession, and held the lots in the city of Portland until November 30, 1878, and the farm lands until some time in the same month and year. Walker, by reason of Hewett's refusal to surrender possession of the property conveyed in trust to Hewett, was compelled to and did bring suit to enforce the sale of the property. All the property was sold, either in accordance with the terms of the defeasances above mentioned or by order of court, and the proceeds of the sale fell far short of paying the note, leaving a balance due thereon of more than $50,000, which Goldsmith had no means to pay. This action was brought by Walker, the payee of the note, against Teal, to recover the damages which he claimed be had sustained by the refusal of Teal to surrender possession of the property of which Goldsmith had been the owner, or which he had owned jointly with Teal, and which had been conveyed to Hewett in trust as aforesaid. The complaint recited the facts above stated, and averred that by reason of the refusal of Teal to surrender possession of the property to Hewett, Walker had been damaged in the sum of $16,000, for which sum the complainants demanded judgment. Teal filed a demurrer to the complaint on the ground that it did not state facts sufficient to constibute a cause of action. The demurrer was overruled, with leave to Teal to answer. He answered, and among other things, denied that Walker had been damaged by the refusal of Teal to deliver possession of the property in the sum of $16,000, or any other sum. The case, having been put at issue by the filing of a replication, was tried by a jury, who returned a verdiot for the plaintiff for $5,345.88, on which the court rendered judgment. To reverse that judgment Teal John H. Mitchell, for plaintiff in error. WOODS, J. The writ of error is not taken to reverse The plaintiff in error insists that Goldsmith, having conveyed to him all his estate in the lands described in the deed to Hewett, the latter cannot recover of him damages, that is to say, the rents and profits, because he refused to deliver to him the premises. We are of opinion that this contention is well founded and that neither Goldsmith nor the plaintiff in error was liable to account to Hewett or Walker for the rents and profits of the premises. A deed absolute upon its face, but intended as a security for the payment of money, is a mortgage even at law, if accompanied by a separate contemporaneous agreement in writing to reconvey upon the payment of the debt. Nugent v. Riley, 1 Met. 117; Wilson v. Shoenberger, 31 Penn. St. 295; Dow v. Chamberlain, 5 McL. 281; Bayley v. Bailey, 5 Gray, 505; Lane v. Shears, 1 Wend. 433; Friedley v. Hamilton, 17 S. & R. 70; Shaw v. Erskine, 43 Me. 371. It is clear upon these authorities that the three deeds executed by Goldsmith and Teal jointly, and the several deeds executed by Goldsmith alone, to Hewett, on August 19, 1874, and the defeasance executed on that day by Hewett and Walker are to be construed together, and so construed they constitute a mortgage given to secure a debt. The lands owned by Goldsmith were conveyed by several deeds, evidently for convenience in registration, as the lands lay in several counties of Oregon and some of them in the Territory of Washington. The lands owned by Goldsmith and Teal jointly also lay in several counties, and were conveyed by separate deeds for the same reason. The execution of all the deeds and the execution of the defeasance which applied to all the deeds, occurred on the same day, and was clearly one transaction, the object of which was to secure the note for $100,000 made and delivered by Goldsmith to Walker. The same remarks apply to the second set of deeds executed by Goldsmith and Goldsmith and Teal on October 18, 1876, and the defeasance executed by Hewett and Walker on the same day. In fact all the deeds and the two defeasances might without violence be regarded in equity as two mortgages executed at different times with one and the same defeasance; for the defeasance last executed provides that it shall not have the effect to annul, vacate or set aside the first except in so far as the two conflict; in all other respects the two were to be taken and construed together. We are therefore to apply the same rules to the questions arising in this case as if we had to deal with mortgages executed in the ordinary form. The decision of the question raised by the demurrer to the complaint is not affected by the stipulation con " 1 tained in the defeasance of August 19, 1874, that Goldsmith and Teal should, on default made in the payment of the principal of Goldsmith's note, and on the demand of Hewett, surrender the mortgaged premises to him. If this was a valid.and binding undertaking it did not change the rights of the parties. Without any such stipulation, Hewett, unless it was otherwise provided by statute, was entitled, at least on default in the payment of the note of Goldsmith, to the possession of the mortgaged premises. Keech v. Hall, 1 Doug. 21: Rockwell v. Bradley, 2 Conn. 1; Smith v. Johns, 3 Gray, 517; Jackson v. Dubois, 4 Johns. 216; Furbush v. Goodwin, 29 N. H. 321; Howard v. Houghton, 64 Me. 445; Den ex dem. Hart v. Stockton, 7 Halst. 322; Ely v. McGuire, 2 Ohio, 223. vols. 1 and 2 (2d ed.) 372. The right of the parties are therefore the same as if the defeasance coutained no contract for the delivery of the possession. We believe that the rule is without exception that the mortgagee is not entitled to demand of the owner of the equity of redemption the rents and profits of the mortgaged premises until he takes actual possession. In the case of Moss v. Gallimore, 1 Doug. 279, Lord Mansfield held that a mortgagee, after giving notice of his mortgage to a tenant in possession holding under a lease older than the mortgage, is entitled to the rent in arrear at the time of the notice as well as to that which accrues afterward. This ruling has been justified on the ground that the mortgagor, having conveyed his estate to the mortgagee, the tenants of the former became the tenants of the latter, which enabled him, by giving notice to them of his mortgage, to place himself to every intent in the same situation toward them as the mortgagor previously occupied. Rawson v. Eicke, 7 Ad. & El. 451; Burrowes v. Gradin, 1 Dowl. & Lowndes, 213. Where however the lease is subject to the mortgage the rule is well settled in this country that as no reversion vests in the mortgagee, and no privity of estate or contract is created between him and the lessee, he cannot proceed, either by distress or action, for the recovery of the rent. Mayo v. Shattuck, 14 Pick. 533; Watts v. Coffin, 11 Johns. 495; McKircher v. Hawley, 16 id. 289; Sanderson v. Price, 1 Zabr. 637; Price v. Smith, 1 Green's Ch. N. J. 516. The case of Moss v. Gallimore has never been held to apply to a mortgagor or the vendee of his equity of redemption. Lord Mansfield himself, in the case of Chinnery v. Blackman, 3 Doug. 391, held that until the mortgagee takes possession the mortgagor is owner to all the world, and is entitled to all the profits made. The rule on this subject is thus stated in Bacon's Abridgment, Title Mortgage, C: "Although the mortgagee may assume possession by ejectment at his pleasure, and according to the case of Moss v. Gallimore, Doug. 279, may give notice to the tenants to pay him the rent due at the time of the notice, yet if he suffers the mortgagor to remain in possession, or in receipt of the rents, it is a privilege belonging to his estate that he cannot be called upon to account for the rents and profits to the mortgagee, even although the security be insufficient." So in Higgins v. York Buildings Company, 2 Atk. 107, it was said by Lord Hardwicke: "In case of a mortgagee, where a mortgagor is left in possession, upon a bill brought by the mortgagee for an account in this court, he never can have a decree for an account of rents and profits from the mortgagor for any of the years back during the possession of the mortgagor," and the same judge said in the case of Mead v. Lord Orrery, 3 Atk. 244: "As to the mortgagor, I do not know of any instance where he keeps in possession that he is liable to account for the rents and profits to the mortgagee, for the mortgagee ought to take the legal remedies to get into possession." In Wilson, ex parte, 2 Ves. & B. 252, Lord Eldon said: "Admitting the decision in Moss v. Gallimore to be sound law, I have been often surprised by the statement that a mortgagor was receiving the rents for the mortgagee. * * *** * In the instance of a bill filed to put a term out of the way, which may be represented as in the nature of an equitable ejectment, the court will in some cases give an account of the past rents. There is not an instance that a mortgagee has per directum called upon the mortgagor to account for the rents. The consequence is that the mortgagor does not receive the rents for the mortgagee." See also Coleman v. Duke of St. Albans, 3 Ves. Jr. 25; Gresley v. Adderly, 1 Swanst. 573. The American cases sustain the rule that so long as the mortgagor is allowed to remain in possession he is entitled to receive and apply to his own use the income and profits of the mortgaged estate, and although the mortgagee may have the right to take possession upon condition broken, if he does not exercise the right, he cannot claim the rents; if he wishes to receive the rents he must take means to obtain the possession. Wilder v. Houghton, 1 Pick. 87; Boston Bank v. Reed, 8 id. 459; Noyes v. Rich, 52 Me. 115. In Hughes v. Edwards, 9 Wheat. 500, it was held that a mortgagor was not accountable to the mortgagee for the rents and profits received by him during his possession, even after default, and even though the land, when sold, should be insufficient to pay the debt, and that the purchaser of the equity of redemption was not accountable for any part of the debt beyond the amount for which the land was sold. In the case of Gilman v. Ill. & Miss. Tel. Co., 91 U.S. 603, it was declared by this court that where a railroad company executed a mortgage to trustees on its property and franchises, "together with the tolls, rents and profits to be had, gained or levied thereupon," to secure the payment of bonds issued by it, the trustees, in behalf of the creditors, were not entitled to the tolls and profits of the road, even after condition broken, and the filing of a bill to foreclose the mortgage, they not having taken possession or had a receiver appointed. The court said in delivering judgment in this case: "A mortgager of real estate is not liable for rent while in possess on. He contracts to pay interest, not rent." So in Kour tze v. Omaha Hotel Co., 107 U. S. 378, it was said by the court, speaking of the rights of a mortgagee: But in the case of a mortgage the land is in the nature of a pledge; it is only the land itself, the specific thing, which is pledged. The rents and profits are not pledged; they belong to the tenant in possession, whether the mortgagor or third person claims under him. **** The plaintiff in this case was not entitled to the possession, nor the rents and profits." See also Hutchins v. King, 1 Wall. 53, 57-58. Chancellor Kent states the modern doctrine in the following language: "The mortgagor has a right to lease, sell and in every respect to deal with the mortgaged premises as owner so long as he is permitted to remain in possession, and so long as it is understood and held that every person taking under him takes subject to all the rights of the mortgagee, unimpaired and unaffected. Nor is he liable for rents, and the mortgagee must recover the possession by regular entry by suit before he can treat the mortgagor, or the person holding under him, as a trespasser." 4 Kent Com. 157. See also American Bridge Co. v. Heidelbach, 194 U. S. 798; Clarke v. Curtis, 1 Grat. 289; Bank of Ogdensburg v. Arnold, 5 Paige Ch. 38; Hunter v. Hays, 7 Biss. 362; Souter v. La Crosse Ry., Woolworth C. C. 80, 85; Foster v. Rhodes, 10 Bankr. Reg. 523. The authorities cited show that as the defendant in error took no effectual steps to gain possession of the mortgaged premises he is not entitled to the rents and |