Duval v. Becker

Citations

• 81 Md. 537
• 32 A. 308
• 1895 Md. LEXIS 77

Syllabus

<p>Abandonment of Easement of Right of Way by Mortgagor — Right of Purchaser at Foreclosure Sale to all the Estate Conveyed by the Mortgage — Abandonment of Easement by Act in Pais.</p> <p>A mortgagor cannot before default, by his own act and without the consent of the mortgagee, abandon an easement appurtenant to the estate and expressly included in the mortgage, so as to bind the mortgagee or prevent the easement from passing to the purchaser upon a foreclosure sale, although the security of the mortgage debt may not have been impaired by such abandonment.</p> <p>The doctrine that the mortgagor, while in possession and before foreclosure, is treated as the real owner of the property, does not apply between mortgagor and mortgagee; and the mortgagor cannot by his own act release the easements appurtenant to the mortgaged estate, or force the mortgagee to accept as security for the payment of the debt anything less than the entire estate originally granted.</p> <p>The acts in pais relied on to constitute an abandonment of a right of way must be of a decisive character, and done by the party against whom they are invoked, or by one under whom he claims.</p>