Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1899-11-12
SUPREME COURT DECISION.

tie OF inheritance without any 1AIei PVo-
g vested freehold.
IS Am. & Eng. iEncy. of Law. lst Ed.
4.
Also u )nmon law a mortgage in
lssessi0u a. such might commit waste
lless liz nad expressly covenanted
sainstjt, hlt he would bs required to
oplv til .imher cut to the interest and
rincipal "a the mortgage debt in an &C
Oh to frrc"Iose CT redeem.
G~reaui-tt5 Cruise on Real Property,
oil. ., 7 I'll.
Hilla4u on Mortgages, 4th Ed. Sec. 1923.
% Am.& Eng. Ency. of Law, LIST Ed, p.
Hanson vs.. Derby, md Vernon, 392.
Mccormack VS.. Digby, S Black. (Ind.)
Ondcrdonck VS.. Gray, On. J. Eq. G5.
"\,chough a MORTGAGE in fee in pos
osSi3n has a right at law to commit any
ind q waste, because he is considered
: the al~ulute owner of the inheritance,
ct he VIII be restrained in equity; and
he court If chancery will also decree an
rcouut to- be taken of the trees cut down
nd direct the produce to he applied first
/ Size rtvlnent of interest due on the
loclga-, and then in reducing the
sincipaI.'
G~reen}r1rs Cruise on Real Property,
"pr0.
II Or. ,&onk VS.. Gray, Sopro., it is
aid: - mortgage in Possession is
oun1 10 count fer all rents. i~,uas and
,roEts lived by him, and for all waste
ma destruction of the premises, and
must dc7e-t the allowance for these mat
ers frun. >he amount due on his mort
cage; aIt.. cray has adopted the proper
purse t. eHtitle him to such allowance
filing Il cross bill ana praying for such
account and to be alloWed to redeem on
,~ayinL.lae balance. But such allowances
AN only 20 claimed either on a bill to
O"recin,2 OF a bill to redeem against a
mortgage. in possession and in possess
zion as a nlortgagee. He cannot be called
% account in such suits for trespass
Committed by him; nor if he is in pos
session Is a tenant of a s~l0rtgagor under
1 lease from him, which a mortgage
nay take as we'll as a stranger, can the
MOrtgaget claim an allowance for rent
iue on the lease or waste committed as a
enant.''
So ais: Guthrie VS.. Kahle, 46 Pa. St.
33I.
keei,,ug these general principles in
n9lnd, Y come to the main question pre-
'ented " the avermsnts in the first
, the cOmpltnr-the right Of the
administrator to maintain an action to
redeem. Generally, such action can be
maintained by those who have an inter
est liz tie mortgaged premises, and
would be losers by foreclosure.
Any person who holds a legal estate
in the m~"rtgaged premises, or any part
thereof, derived through, under or in
erivity with the mOrtgagOr, and any per-
son hold ,ng either a legal or equitable
len on the premises, or any part thereof
undeT or IN privity with the mertgagor's
estate, ma also in like manner redeem
from a prior mortgage"
Pomerey's Eq. Jursp. $50.
No peySon can come into a our OF
equity lnr a redemption Of a mortgage
out be " no is entitled to the legal estate
of the i,ortgagor, or claims a subsistins
interest |uder him : y =. If the ReSpon,
dents have shown no interest in them.
selves o 4 right to redeem the mortgage
on Their own account, or on account o
shown, md whose interest they have {
right l.. represent, their claims cannot b.
supported, Notwithstanding some othel
person might have a right to enforce th,
same vlAim."
& Mt VS.. Duane, 9 Johns On. Y.
81.
At common law the real property of
decedent could not be subjected to tn,
payment of simple contract debts, anC
ives not subject to administration, but il
this, as IN nearly all of the States, tai
rule has been changed by statute, and tn,
real property while descending to tn
heirs Is made subject to the payment Q
debts in the course of administratio
and becomes assets ia the hands of tn
administrator for that purpose. Henc
it has been held that the Administrato
may have such an interest in the lands G
the dec"ttent as would entitle him to re
deem aud therefor entitle him to main
tain s"ch an action. In ene.. case it j
said, at is also claimed that the suit
improperly brought by the Administrs
tor, aud that the heirs should have bee
made parties. Whether in such cases tn
heirs are ever necessary parties unde
our system, where the bill is filed for r,
dsmpti'n, or to remove al alleged cleu,
in the shape of an undischarged NOR
gage. K Is not nov important to e1amin,
= = + The Administrator being or
titled under the statute to the possessio,
ofthe lands Of his intestate, has such q,
interest as entities him to redeem or t
compel a release of a satisfied mortgag,
and if the heirs would have been props
parties, the decree is nevertheless vail
nch as it does not complete justic
as it siauds provided it is sustained b
the pso is"
Euos vs.. Sutherland, IL Mich. SAL.
Discussing the same question in al