
    GIRARD LIFE INSURANCE ANNUITY AND TRUST COMPANY OF PHILADELPHIA, PENNSYLVANIA, Appellant, v. JOHN MANGOLD, Respondent.
    St. Louis Court of Appeals,
    February 27, 1900.
    Mortgage: ACTION FOR WASTE: BY BENEFICIARY OR TRUSTEE: MAINTAINABLE. The beneficiary or trustee in a deed of trust after foreclosure and entry thereunder may maintain an action of trespass for injuries to the land between the execution of the debt' and prior to the foreclosure sale, if the proceeds of the sale are not sufficient to pay the secured debt.
    Appeal from the Iron Circuit Court. Hon. James F. Green, Judge.
    Eeveesed and remanded.
    
      Geo. L. Edwards for appellant.
    (1) “If there was any substantial evidence tending to establish the allegations of the petition, the court had no authority to withdraw the case from the jury.” Cook v. Eailroad, 63 Mo. 397; Eichey v. Barnes, 83 Mo. 362; Kelly v. Eailroad, 70 Mo. 604; Stewart v. Sparkman, 69 Mo. App. 456; Hite v. Eailroad, 130 Mo.T40(on rehearing); Bender v. Eailroad, 137 Mo. 240. (2) “The beneficiary in a deed of trust may, after entry or foreclosure, maintain an action against the mortgagor or third persons for permanent injuries to the mortgaged premises, which were committed while the premises were in the possession of the mortgagor.” And this though the trespass was committed prior to the maturity of the mortgage debt. Hietkamp v. Granite Co., 59 Mo. App. 244; Chouteau v. Bougkton, 100 Mo. 406.
    
      Dinning, Hamel & Dinning for respondents.
    (1) The sole question presented by this record is: Can the beneficiary in a deed of trust maintain trespass against a party who purchased stave bolts from parties who had, prior to the execution of the deed of trust, cut the timber out of which the stave bolts were made, and severed it from the land described in the deed of trust? We answer no, and we do not believe that an affirmative answer to this question can be found in print. (2) To maintain trespass in this state, whether under the statute or at common law, one of two things must exist, to wit: At the date of the wrong complained of the plaintiff must be in actual possession of the premises, or in constructive possession thereof. Constructive possession in the language of Judge Black, speaking for the supreme court, is: “* * * when the property is in the custody and occupancy of no one, but rightfully belongs to the plaintiff. In that case the title draws to it the possession.” Brown v. Hartzell, 81 Mo. 568 loe. cit. (3) The case of Chouteau v. Boughton, 100 Mo. 406, is not authority that trespass can be maintained, in this state, when the plaintiff is not in constructive or actual possession of the premises, for Judge Black, who delivered the opinion in said cause, on page 489 of said report, says: “The deed of trust contains a provision to the effect that the lands shall be deemed in the legal possession of the trustees.” (4) Section 695a, 1 Jones on Mortgages (5 Ed.), under the head of “Waste by Mortgagor” declares: “The mortgagee is entitled to recover damages for a permanent injury to the mortgaged land by a third person whereby the value of the security is impaired.” (5) The ease of Heitkamp v. The La Motte Gi’anite Co., 59 Mo. App. 244, was an action for waste, and the plaintiff in that case was in actual possession, but the injury done to the land in both the Heitkamp case and the Chouteau-Boughton case, 
      supra, was done after forfeiture' — after the amount secured by tbe deed of trust had become due. (6) Can tbe beneficiary in a deed of trust, prior to tbe maturity of tbe note secured thereby, maintain trespass against a stranger wbo enters upon tbe premises and cuts down and removes timber therefrom? If this question -were in this case we would answer no. “Tbe modern doctrine is well established that a mortgage, or deed of trust in tbe nature of a mortgage, is but a security for tbe payment of tbe debt or tbe discharge of the engagement for which it was originally given, and until tbe mortgagee enters for breach of tbe conditions, and in many respects until final foreclosure of tbe mortgage, tbe mortgagor continues tbe owner of tbe estate, and has a right to lease, sell, and in every respect to deal with tbe wrongful or fraudulent injury to tbe premises whereby bis security is impaired; be may have an action on tbe case against tbe mortgagor, or other person wbo has committed tbe wrongful act.” Tbe action referred to in section 695a, supra,,is one on the case. Lane v. Hitchcock, 14 Johns. 213; Allison v. McCune, 15 Ohio, 726; Carpenter v. Canal Co., 35 Ohio St. 307; Jones on Mortgages (5 Ed.), sec. 455.
   BOND, J.

This is an action for trespass brought by a beneficiary in a deed of trust on certain real estate for tbe cutting and removal of timber, between tbe date of tbe execution of tbe deed of trust and tbe foreclosure thereof, it being alleged that tbe proceeds of tbe foreclosure did not satisfy tbe secured indebtedness. There was evidence tending to prove tbe allegations of tbe petition. Tbe learned circuit judge announced during tbe trial that be was of opinion “that tbe defendant was not liable for tbe cutting of timber before tbe maturity of tbe deed of trust.” In accordance with this view at tbe end of tbe trial be directed a verdict for defendant. Plaintiff appealed.

Tbe only question presented is, can tbe beneficiary or trustee in a deed of trust after foreclosure and entry thereunder bave trespass for injuries to tbe land between tbe execution of tbe deed and prior to tbe foreclosure sale, provided tbat did not pay off tbe secured debt? Tbe supreme court bas answered tbis question in tbe affirmative. Chouteau v. Boughton, 100 Mo. 406; followed in Heitkamp v. Granite Company, 59 Mo. App. 244. Tbe ruling tbus announced is controlling upon us, and necessitates a reversal of tbis judgment and tbe remanding of tbe cause, to be tried in conformity with tbe doctrine announced by tbe supreme court. It is so ordered.

.All concur.  