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590 NEALE v. HAGTHROP.
finally in the possession of the late John Hook, and those who
have succeeded to and claim under him ever since the year 1797.
They have protected it, relieved it from burthens and charges, and
have placed upon some parts of it lasting improvements, 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 for 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, (k) 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 for taking
opinions and procuring directions necessary for the due execution
of the trust; (f) taxes, paving contributions, ground rent, and
sums expended in necessary repairs, (m) It has been also said,
and I think with justice, that when a mortgagee, thinking himself
absolutely entitled, had expended considerable sums in repairs and
lasting improvements, he should be allowed the value of them, (n)
In a modern case, the value of new buildings, erected by the
mortgagee, was allowed, (o) And a liberal allowance for the im-
proved value of slaves while in the possession of the mortgagee
was directed to be made, (p) The grounds of these decisions
appear to be that a mortgagee in possession is the legal holder of
the estate; which the mortgagor may at any time redeem; and so
prevent him from making any repairs or improvements; and if the
(k) Powel Mortg, 948; 2 Fonb. Eq. 179-(l) Fearns v. Young, 10 Ves. 184;
Willis on Trustees, 123, 147; Lewin on Trusts, 452, 456; Jones v. Stockett, 2
Bland, 417. —(m) Powel Mortg. 956, n.; Balsh v. Hyham, 2 P. Will 455. —(n)
Powel Mortg. 956, n. —(o) Hardy v. Reeves, 4 Ves. 482. —(p) Ross v. Norvall, 1
Wash. 14.
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