¶1The case shows that the railroad had executed a mortgage of all their real estate, and had surrendered the road and the land to the mortgagees, who were in possession under the mortgage. Where the mortgagor remains in possession, it has been decided that he is the proper party to have notice of the hearing -on a petition to lay out a highway. Parish v. Gilmanton, 11 N. H. 293. But where the mortgagee has taken possession, we think he is the party entitled to notice, and to receive the money awarded for damages. He would be obliged to account for the damages he had received, if the mortgagor came to redeem, and there would be no difficulty in arranging the equitable rights of the parties under the mortgage. If the mortgagor out of possession were to receive the damages, the security of the mortgagee might be endangered.
¶2We think we cannot in this proceeding go into the inquiry whether their charter authorized the railroad to make this mortgage. The trustees are in possession of the land, under a conveyance regular in form, from the party admitted to have owned the land at the time of the conveyance. No question as to their right under the mortgage is here made by the State, the railroad, or any other party interested in the title ; and we think that in this public proceeding for laying out a highway we cannot enter upon that inquiry.
¶3The report must he rejected, and the petition recommitted.