Ames, C. J.
The first ground upon which the nonsuit in this case was moved for and obtained is clearly untenable. If this action against the mortgagor is maintainable at all under the circumstances disclosed by the bill of exceptions, it can be maintained only in the joint names of the plaintiffs as husband and wife. The debt secured by the mortgage is, by force of the “ Act concerning the property of married women,” (Dig. 1844, p. 270,) the sole and separate property of the wife; and the interest in property, whether real or personal in its nature, conveyed by the mortgage in security is, as incident to the debt, solely her estate. This action being brought to assert her right as mortgagee to the property claimed in replevin, in order that it may be applied, when recovered, to the payment of her sole and separate debt, must, by the very terms of the sixth section of the above entitled act, as an action relating ” to the property of a married woman “ secured to her by this act,” be sued by the husband and wife jointly, except when, which is not this case, a trustee of the property has been appointed by the court. (Dig. [543]*5431844, p. 271.) The argument of the counsel for the defendant, whether founded upon the above statute or upon the common law authorities cited by him, supposes the wife in this case to be' the absolute owner of the replevied property, instead of having a mere right to hold it in security for, and as incident to, her sole and separate property, the mortgage debt.
The other ground upon which the nonsuit in this case was ordered requires more consideration. It is difficult to see upon what principle, trespass, an action appropriate only to an injury to the possession of the plaintiff, can be maintained by a mortgagee who has never had possession of the mortgaged property against a mortagor who is in possession of it, upon the ground that the former, by the cutting of timber or the like, is exceeding his power over the mortgaged property. The cases cited by the counsel for the defendant, as well as the more recent cases of Litchfield v. Ready, 1 Eng. L. & Eq. R. 462, and Turner v. Cameron, Coalbrook, &c. Railway Co. 2 Eng. L. & Eq. R. 342, in both which the opinion of the court of exchequer was given by Baron Parke with his usual force and clearness, are, we think, decisive upon this point, if indeed the point were not already clear from the very nature of the action of trespass. The notion upon which some of the cases cited by the counsel for the plaintiffs proceed, that a mortgagor in possession is a mere tenant at will of the mortgagee, and that his tenancy is determined at law by the first act of waste which he commits, exemplifies the danger against which Lord Mansfield gave his warning upon this very subject in the leading case of Moss v. Gallimore, Doug. 279. “ Nothing,” says his lordship, “ is so apt to confound as a simile.” A mortgagor in possession is not a tenant at will of the mortgagee in any other sense than a disseisor or intruder is. His possession may be terminated at the will of the mortgagee by entry or action; but he pays no rent, is entitled to no emblements, and may be entered upon or sued in ejectment without notice. He has no stable right of possession as against the properly asserted right of possession of the mortgagee ; but no incident of a tenancy at will, that we know of, attaches to the relation between them. “ The mortgagor is not in all respects a mere bailiff; he is much like a bailiff; he is [544] not a mere tenant at will; in fact he cam be described merely by saying, he is a mortgagor.” Per Parke, Baron, in Litchfield v. Ready, 1 Eng. L. & Eq. R. 462.
But it by no means follows, as supposed by the learned judge below, that because trespass will not lie in favor of a mortgagee against a mortgagor in possession, under the circumstances disclosed by this bill of exceptions, that replevin will not. It is true, that at common law, a wrongful taking is necessary to the maintenance of the latter action; but by our statute “ regulating proceedings in replevin,” (Dig. 1844, p. 182,) the action is given “ when any goods or chattels ” “ shall be unlawfully taken or unlawfully detained from the owner or the person entitled to the possession of the same.” Accordingly, this action has, for a long time, been in use amongst us, not merely to recover possession of goods wrongfully taken, but to enforce the plaintiff’s title to the possession of goods when improperly resisted, without regard to the mode in which the defendant acquired possession of them. Nothing but a right of present possession in the plaintiff, founded either upon a general or special ownership of goods, is necessary, under the well-settled construction of the above statute, to enable him to maintain a writ of replevin for them.
Had Clarissa D. Waterman then such right of possession to the timber, logs, and wood replevied by this writ, on the 21st day of May, 1857, when it was served ?
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Ames, C. J.
The first ground upon which the nonsuit in this case was moved for and obtained is clearly untenable. If this action against the mortgagor is maintainable at all under the circumstances disclosed by the bill of exceptions, it can be maintained only in the joint names of the plaintiffs as husband and wife. The debt secured by the mortgage is, by force of the “ Act concerning the property of married women,” (Dig. 1844, p. 270,) the sole and separate property of the wife; and the interest in property, whether real or personal in its nature, conveyed by the mortgage in security is, as incident to the debt, solely her estate. This action being brought to assert her right as mortgagee to the property claimed in replevin, in order that it may be applied, when recovered, to the payment of her sole and separate debt, must, by the very terms of the sixth section of the above entitled act, as an action relating ” to the property of a married woman “ secured to her by this act,” be sued by the husband and wife jointly, except when, which is not this case, a trustee of the property has been appointed by the court. (Dig. [543]*5431844, p. 271.) The argument of the counsel for the defendant, whether founded upon the above statute or upon the common law authorities cited by him, supposes the wife in this case to be' the absolute owner of the replevied property, instead of having a mere right to hold it in security for, and as incident to, her sole and separate property, the mortgage debt.
The other ground upon which the nonsuit in this case was ordered requires more consideration. It is difficult to see upon what principle, trespass, an action appropriate only to an injury to the possession of the plaintiff, can be maintained by a mortgagee who has never had possession of the mortgaged property against a mortagor who is in possession of it, upon the ground that the former, by the cutting of timber or the like, is exceeding his power over the mortgaged property. The cases cited by the counsel for the defendant, as well as the more recent cases of Litchfield v. Ready, 1 Eng. L. & Eq. R. 462, and Turner v. Cameron, Coalbrook, &c. Railway Co. 2 Eng. L. & Eq. R. 342, in both which the opinion of the court of exchequer was given by Baron Parke with his usual force and clearness, are, we think, decisive upon this point, if indeed the point were not already clear from the very nature of the action of trespass. The notion upon which some of the cases cited by the counsel for the plaintiffs proceed, that a mortgagor in possession is a mere tenant at will of the mortgagee, and that his tenancy is determined at law by the first act of waste which he commits, exemplifies the danger against which Lord Mansfield gave his warning upon this very subject in the leading case of Moss v. Gallimore, Doug. 279. “ Nothing,” says his lordship, “ is so apt to confound as a simile.” A mortgagor in possession is not a tenant at will of the mortgagee in any other sense than a disseisor or intruder is. His possession may be terminated at the will of the mortgagee by entry or action; but he pays no rent, is entitled to no emblements, and may be entered upon or sued in ejectment without notice. He has no stable right of possession as against the properly asserted right of possession of the mortgagee ; but no incident of a tenancy at will, that we know of, attaches to the relation between them. “ The mortgagor is not in all respects a mere bailiff; he is much like a bailiff; he is [544] not a mere tenant at will; in fact he cam be described merely by saying, he is a mortgagor.” Per Parke, Baron, in Litchfield v. Ready, 1 Eng. L. & Eq. R. 462.
But it by no means follows, as supposed by the learned judge below, that because trespass will not lie in favor of a mortgagee against a mortgagor in possession, under the circumstances disclosed by this bill of exceptions, that replevin will not. It is true, that at common law, a wrongful taking is necessary to the maintenance of the latter action; but by our statute “ regulating proceedings in replevin,” (Dig. 1844, p. 182,) the action is given “ when any goods or chattels ” “ shall be unlawfully taken or unlawfully detained from the owner or the person entitled to the possession of the same.” Accordingly, this action has, for a long time, been in use amongst us, not merely to recover possession of goods wrongfully taken, but to enforce the plaintiff’s title to the possession of goods when improperly resisted, without regard to the mode in which the defendant acquired possession of them. Nothing but a right of present possession in the plaintiff, founded either upon a general or special ownership of goods, is necessary, under the well-settled construction of the above statute, to enable him to maintain a writ of replevin for them.
Had Clarissa D. Waterman then such right of possession to the timber, logs, and wood replevied by this writ, on the 21st day of May, 1857, when it was served ?
As mortgagee, she was certainly entitled to the possession of the real estate mortgaged, including the timber and wood growing thereon. If the wood and timber taken from the land by the defendant were taken in the course of good husbandry as a portion of the proper rents and profits of the same, he was undoubtedly entitled to them as mortgagor in possession without liability to account therefor to his mortgagee. If, on the other hand, they were taken from the mortgaged premises in strip and waste of the same, and so in violation of the rights of Mrs. Waterman as mortgagee, such wrong cannot, in our judgment, because it severs the timber and wood from the freehold, deprive her of her right to it at law under her mortgage as security for her debt, but simply changes her remedy from eject[545] ment to replevin — from the form of action appropriate to the enforcement of her right to the possession of real, to the form of action appropriate to the enforcement of her right to the possession of personal property. Formerly, the right of the mortgagor was, upon breach of the condition of the mortgage, wholly gone at law; and his equity to redeem was recognized only by the tribunal able to enforce such a right. It is true, that in modern times the courts of law have, for many purposes, treated the mortgagor in possession as the real owner of the estate, looking upon a mortgage in the same light that a court of equity does, as a mere security for the ■ mortgage debt; but we can see no reason why such courts should recognize in a mortgagor in possession under a forfeited mortgage greater rights over the mortgaged estate than courts of equity do. The rights and duties of mortgagor and mortgagee in and as to the mortgaged estate must be the same, in whatever forum they may come to be considered. Neither can deal with these rights and duties, except in the mode proper to it, and according to the forms of proceeding adapted to the redress which may be sought. The mortgagee’s remedy against waste of the mortgaged estate by the mortgagor, must, in general, that is, where a writ of estrepement will not lie — be sought by injunction in equity; but waste is equally a violation of the rights of the mortgagee under the mortgage, at law, as in equity, and is regarded as a wrong in a court of law, with all the legal consequences attached to an act of that character. One of the most obvious of these is, that the wrongdoer can derive no advantage from his wrongful act; and for this reason, we have considered, that the-cutting down of timber and trees growing on the mortgaged premises in waste of the same, and in substantial diminution of the stipulated security of the mortgagee, cannot affect his right, although it may change the form of his remedy, to recover possession of the property conveyed by the mortgage deed.
Whether the timber and wood replevied- by the plaintiffs were severed by the mortgagor from the mortgaged premises in due course of husbandry, or in wrongful waste and strip of the same, and in substantial diminution of the mortgagee’s stipu[546] lated security for her debt, was a question of fact to be passed upon by a jury upon evidence to be submitted to them ; and in our judgment, the court below erred in ordering a nonsuit in this case upon the second ground upon which the same was moved for and obtained.
For these reasons, the judgment of nonsuit rendered in this cause by the court of common pleas of the county of Kent is set aside, and a new trial is granted to the plaintiffs, to be had at the next term of said court.