NEALE v. HAGTHROP.—3 BLAND. 573

bill put upon the record until some time after that day. There is,
however, no charge whatever made against this defendant; and
therefore the bill will be dismissed as to him with costs.

I have said, that the recital and proviso, of the indenture of the
17th of August, 1797, from Anthony Hook to John Hook, gave to
that instrument the features and character of -a mortgage. Conse-
quently the original parties stood, and their legal representatives
now stand in the relation to each other of mortgagor and mort-
gagee, or trustees and cestuis que trust. No acts or circumstances
appear to have occurred to destroy the redeemable quality of that
deed. Hagthrop and wife, as administrators of the late John
Hook, have succeeded to his character of trustee. And the de-
fendants, who all claim under them, except Nathaniel Chittenden.
who deduces his claim from the late John Hook, being purchasers
with notice, for so much as they respectively hold, stand charged
with the same trusts.

The whole of the property mentioned in the bill has been con-
tinually *in the possession of the late John Hook, and those
who have succeeded to and claim under him ever since the 590
year 1797. They have protected it, relieved it from burthens and
charges, and have placed upon some parts of it lasting improve-
ments. It now, therefore, only remains to apply the rules of
equity in relation to these matters, and to direct how the accounts
shall be taken.

If a mortgagee, without the assent of the mortgagor, assigns
the mortgaged estate to an insolvent person, who he puts into
possession, he will be held answerable lor the rents and profits re-
ceived both before and after the assignment. Upon the principle
of its being a wilful breach of trust to transfer the property to
another; which, as trustee, he had no right thus to dispose of to
the prejudice of the mortgagor. Powel Mort. 948; 2 Fonb. Eq. 179.
A trustee is, in no case, to be charged with imaginary values; but
only with what he actually receives. And the same rule applies
to a mortgagee in possession, who is regarded as a trustee. But
no default must be imputed to him; for, in all such cases, he will
be charged with what he might have made, but for his default.
The annual value is that which the premises are actually worth
net, according to a fair estimate, clear of all necessary charges.

Under the head of just allowances, it has long been the course
of the Court, to allow a trustee, or mortgagee, in possession, for
all necessary expenses incurred for the defence, relief, protection,
and repairs "of the estate; such as costs of suit, and fees tor taking
opinions and procuring directions necessary for the due execution
of the trust; Fearns v. Young, 10 Ves. 184; Willis on Trustees, 123,
147; Lewin on Trusts, 452, 456; Jones v. Stockett, 2 Bland, 417;
taxes, paving contributions, ground rent, and sums expended in
necessary repairs. Powel Mort. 956, n.; Balsh v. Hyham, 2 P.