Page:Federal Reporter, 1st Series, Volume 7.djvu/262

 250 FEDERAL REPORTER. �commenced in the circuit court aforesaid, on March 5, 1881, in which no special mention was made of said copper. In the intervention of Sutton & Co. it is alleged that this old copper was and is included in the mortgage of the vessel, and that the same is in their possession on board the ship. �On April 6th the vessel, without the copper, was sold for $26,000, upon an interlocutory decree in the suit of McNiell and others, aforesaid t and on the same day a stipulation was entered into between Cornish & Hitchcock and Sutton & Co., stating the facts aforesaid concerning said copper, and that a controversy existed between said parties "as to whether or not said metal is included in or is now a part of the mort- gaged property, or whether it should be applied upon the claim of said G. & H. by virtue of their attachment;" and consenting that said copper œight be sold by the marshal, and that the proceeds, less the expenses of sale, should be held subject -to the claim of each party, and the right of G. & H, to intervene and assert their claim in this suit. . Upon this stipulation an order was made for the sale of the copper, and it was sold by the marshal for $1,098.50. �No decided case in point has been found, but I think the question involved in the controversy may be satisfactorily answered by a careful consideration of the circumstances and purpose of the transaction, and a reference to the rules and principles which govern the rights of parties in the case of a mortgage of lands where the mortgagor remains in possession. �A mortgage of land includes everything annexed to the freebold at the date thereof, or that may become so annexed during the existence of the mortgage. Winsloiv v. Merchants' Ins. Co. 4 Met. 310. But a building or growing timber severed and removed from the mortgaged land, of which it formed a part when the mortgage was given, is thereby with- drawn from the operation of the mortgage. By reason of such removal they cease to be a part of the realty — the pledge. Buckouty. Swift, 27 Gai. 438. �The right of the mortgagor in possession to eut timber and remove fixtures, and dispose of them, is unlimited, unless re- ��� �