The  remedy  by  ejectment  was  formerly  used  by  mortgagees  to
recover  possession  of  the  mortgaged  preinises  after  defaitlt  hj  the
mortgagor.  Prior  to  the  Revised  Statutes  that  was  the  rule  in  this
State.  The  present  section  is  a  re-enactment  of  2  R.  S.  312.  The
statute  is  cited  or  commented  upon.     Packer  v.  R.  '&  S.  R.  R.  Co.,

1 7  N.  Y.  .283  ;  Trimm  v.  Marsh,  54  id.  599  ;  Madison  Aven  ue
Baptist  Church  v.  Oliver  Street  Bajjtist  Church,  73  id.  82  ;  Den-
7iing  V.  Fisher,  20  Hun,  178.  But  on  the  other  hand,  a  mortgagor
in  default  may  have  ejectment  against  an  intruder  or  one  claiming
under  a  void  deed,  as  he  has  the  right  of  possession  against  every  one


Action  to  Eecovee  Real  Peopeety  —  Ejectment.         17

except  the  mortgagee  in  possession.  Olmsted  v.  Elder,  5  N.  Y.
114.  The  rule  preventing  a  mortgagee  from  maintaining  ejectment
applies  to  a  deed  absolute  on  its  face,  but  held  as  security.  Murray
V.  Walker,  31  N.  Y.  399 ;  Oarr  v.  Oarr,  52  id.  251.  The  pro-
vision of  the  statute  embraces  every  description  of  mortgage  which,
prior  to  the  Revised  Statutes,  could  have  been  made,  and  it  is  not
Confined  to  instruments  accompanied  by  a  bond  or  other  security  for
the  payment  of  money  and  which  contain  a  power  of  sale.  Stew-
art V.  HutcMns,  13  Wend.  485  ;  affirmed,  6  Hil],  143.
