This is an action of ejectment to recover a strip of ground situated in the city of St. Louis, upon which the railroad of defendant is located.
Both parties claim under William T. Gay. At the trial in the circuit court the plaintiff' read in evidence a deеd of trust, dated May 27th, 1874, and recorded May 29th, 1874, executed by William T. Gay and wife to A. M. Britton, trustee, to secure to plaintiff' a princiрal note of $29,000, due in five years, and ten semi-annual interest notes, all executed and delivered by said Gay to plaintiff, and of even date with the deed of trust, conveying a tract of land embracing the premises sued for; also the deed of William T. Gаy and wife, by said trustee, dated June 8th, 1875, recorded June 9th, 1875, conveying to plaintiff, pursuant to a sale made under said deed of trust, said tract of land. Testimony was given by plaintiff tending to show “ that he never had actual notice, nor actual knowledge, nor аctual information, that a railroad had been surveyed, or located, or in part or in any manner constructed upоn the premises sued for, until his first visit to the premises, which occurred about three-weeks before June 8th, 1875.” The value of the monthly rents and profits and the amount of damages were established, and plaintiff rested his case.
The defendant gave in evidence a deed from William T. Gay and wife to the St. Louis & Elorissant Railroad Company, dated September 19th, 1874, recorded Septеmber 23rd, 1874, conveying in consideration of $1, the right of way for said railway, along and upon the premises sued for ; also documentary evidence showing that the defendant had succeeded to the rights of the St. Louis & Elorissant Railroad Company. Oral evidence was given on defendant’s behalf tending to show that in 1872 the St. Louis &
It does not plainly appear when the road was completed so as to be ready for the cars, nor does it appear when the default occurred in the payment of the notes made by Gay to the plaintiff, for which the land sued for was sold by the trustee, Rritton.
The circuit court rendered judgment for the dеfendant, which was reversed by the court of appeals, and the defendant has appealed to this court. The сourt of appeals held that as the plaintiff took the trust deed without notice, actual or constructive, of the rights of the Florissant Railroad Company, to which the defendant succeeded, he was entitled to recover, and that the facts stated in the
It is very clear that none of the acts done by the railroad company upon the land sued for, prior to default in the payment of the debt, or interest, secured by the trust dеed, called for any action on the part of the plaintiff, who was the beneficiary in said deed, even if he had known of them. Prior to the default of the mortgageor, the mortgagee had no right to forbid the mortgageor or his licensee, from doing any work on the mortgaged premises, which did not impair the value of the land as security for the debt. If it clearly appeared, however, that after the trustee, by reason of default in the payment of any of the interest notes, became entitled to take possession of the land for the beneficiary, the defendant’s road was in process of construсtion and not completed, and the plaintiff had knowledge that the defendant was building its road under a parol license, оr an unrecorded deed given or made prior to the default, we think it would have been the duty of the plaintiff' to have notifiеd the defendant that there had been a default in thepayment of the notes, and that he was entitled to the possession of the land and forbade the further prosecution of the work. This duty results, as we think, from the nature of the estate of the mortgagee. A mortgage, in this State, is a mere security for the debt, and notwithstanding the legal title is nominally in the mortgagee, the mortgagеor is still considered the owner and entitled to the possession until default. Woods v. Hilderbrand,
The judgment of the court of appeals will be affirmed, aud the cause remanded to the circuit court for a new trial.