
    *Between LAMBERT CADWALLADER and Philemon Dickenson, executors of John Cadwallader, and Edward Loyd, administrator of Edward Loyd, with his testament annexed, plaintiffs, and ELIZABETH MASON, Abraham Barnes, Thompson Mason, John Thompson Mason, and Bailey Washington, defendents.
    
    March, 1793.
    Mortgages — Mortgagor’s Accountability o{ Profits.--— A mortgagor, or his devisee, who will not redeem the estate pledged, hut retaining the possession taketh the profits thereof after the time limited for the performance of the condition, ought to account for such aftertaken profits.
    
      
      For monographic note on Deeds of Trust, see end of case,
    
    
      
      Mortgages — Right to Rents and Profits. — In Clarke y. Curtis, 1 Gratt. 389, it is said that, although it is competent for a court of equity, in a proper case, to sequestrate the rents and profits of mortgaged or incumbered property, where a forfeiture has accrued, and such rents and profits may be necessary to discharge the incumbrances, it is not competent to recover from the mortgagor, or equitable owner in possession, the rents and profits actually received by him, or which accrued before any order of sequestration was made.
      And, in Alien v. Gibson, 4 Rand. 476, it is said: “A mortgagee, after the mortgage is forfeited, has a right to the possession of the mortgaged premises, and may enter thereon, or maintain an ejectment; and the assertion of this right may be necessary to secure the payment of the debt. The value of the property may not be sufficient to pay the debt, with the accumulated interest during the pendency of an ejectment, or a bill to foreclose (in which cases arbitrary appeals are permitted), unless the rents and profits can be reached to keep down the interest: and they cannot be reached in the case of a first mortgagee (unless under peculiar circumstances), but by his getting the possession of-the land.”
      See farther, on this subject, Scott v. Wharton, 2 H. & M. 25; foot-note to Bank v. Hupp, 10 Gratt. 23; footnote to Clarke v. Curtis, 1 Gratt. 289; Appendix, Wythe 427; monographic note on "Mortgages” appended to Forkner v. Stuart, 6 Gratt. 197; mono-graphic note on "Deeds of Trust,” following the principal case. And see the principal case cited in Bank v. Hupp, 10 Gratt. 42.
    
   UPON the principal question in this cause, the court on the 8 day of march, 1793, delivered the following

OPINION:

That a mortgager or his devisee, who will not redeme the estate pledged, but retaining the possession taketh the profits thereof, after the time limited for performance of the condition, ought to account for such aftertaken profits, because, during this period, he is an unrighteous possessor, neither having the legal title, nor asserting his equitable title, probably conscious that the estate is of less value than the debt with which it had been incumbered, and- yet diminishing that value, by withholding the possession so long as the laws delay pre-venteth the wresting it from him, and by enjoying the fruits in the mean time, and to this opinion the court adhereth, notwithstanding the objection, that the mortgager, or his devisee, doth not appear to have been made so accountable in any instance, but, on the contrary, demands of such accounts against a mortgager have been judicialy rejected, in some instances: for the inference, against the existence of a right, drawn from defect of precedents in affirmance of the right, is not allowed alone to be decisive, in any case; and, opposed to the principle before explained, if that be true and well applied, is affirmed to be not decisive, in this case; and the reason assigned for the rejection, to which the latter part of the objection alludeth, namely, that mortgagee ought to take the legal remedies to get into the possession, seemeth not pertinent to the question, nor congruous with the praecepts of justice: for this court cannot discern how, from the mortgagees obligation to resort to legal remedies for recovering possession of land, to which his right is undeniable, is deducible this consequence, that he must be deprived of profits taken before the remedies, dilatory in themselves, and often *made more so through industrious procrastination by the other party, are efficatious — profits which the former would have taken, and to which his right would have been the same as his right to the land which produced them, if the mortgager had not wrongfully detained the possession of this; and to a decision, by any court, which results not, by fair deduction, from the principles alleged to warrant it, the authority of a precedent, which ought to govern in like cases is denied, nor can this court grant that the mortgager, retaining profits, which, on the supposition that he doth not intend to redeme the estate mortgaged, he ought not to have taken, may thus justly enrich himself out of the mortgagees loss.  