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The opinion of the court was delivered by

Redeield, Ch. J.

It is now well settled in this state that after the law day is passed, the mortgagee is to be regarded as the owner of the mortgaged premises, and any timber which the mortgagor or those acting under him, cut upon the premises, *208beyond necessary fuel and repairs or erections upon the premises, is to be regarded as tortiously taken, and no title vests in the person cutting such timber. The title still remains in the mortgagee the same as before the severance unless its nature is changed and it becomes no longer traceable, and the motgagee may recover its value. Lull v. Mathews, 19 Vt. 322; Langdon v. Paul, 22 Vt. 205.

But before the law day arrives, by the statute of this state, the mortgagee has no right of entry; the estate is regarded as still in the mortgagor, and whatever acts he does upon the land he does as owner, and he cannot, at law, be prevented from doing acts which might substantially lessen the security. Whatever the mortgagor severs from the freehold becomes his personal property, and so if done with his permission or by his tenants for firewood, as in the present case. And it seems to us the mortgagee has no title to it.

The mortgagee cannot, even in equity, restrain the mortgagor or his assignee or tenants from using necessary firewood so long as they remain in possession. And if it be cut in good faith for that use, it is the same as if actually applied to the use. If a contingency occurs by which the party leaves sooner than he expected, or he does not require to use it, the title is not thereby divested. This would seem to be the rule in regard to necessary firewood beyond all question, if cut before condition broken. How the rule might be after, we need not now consider.

And if the plaintiffs had no title to the wood, as against the defendant, he cannot recover in the action.

The judgment is reversed and the case remanded.

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