Bull Cozzens

Dtjeeee, C. J. Our opinion is that the power reserved to the grantors in the mortgage deed, mentioned in the case stated, if it did not sooner determine by the death of one of the grantors, was extinguished by the sale for breach of condition. The deed conveyed not only the lot described, but also, together with it, “ all the rights and easements,” and therefore conveyed “ the rights and easements ” attached to the lot by the covenant given by William Vernon in his deed of 1799. The premises, however, were mortgaged, subject to the power reserved, and, we are inclined to think, continued subject to that power so long as the mortgage was outstanding, unless the power became extinct by the death of one of the grantors. But the mortgage was not only subject to the power reserved to the grantors ; it was also coupled with a power given by the grantors to the mortgagee or his executors, administrators, or assigns. The latter power authorized the mortgagee, his executors, administrators, or assigns, on breach of condition, to sell the mortgaged premises and *537 “ convey tbe same absolutely and in fee simple to the purchaser.” The power covers the rights and easements appurtenant to the lot, as well as the lot itself. It was executed before any attempt was made to execute the power reserved. It is well settled that a conveyance under such a power is the conveyance, not only of the mortgagee or assignee executing it, but also, and even more properly, the conveyance of the mortgagor himself. 4 Kent Comment. *327 ; 2 Jones on Mortgages, § 1897; Woonsocket Instit. for Savings v. Amer. Worsted Co. 13 R. I. 255. The conveyance under the power, therefore, may be treated as if tbe mortgagors themselves had made it directly to the purchaser, and had paid off the mortgage out of the purchase-money, reserving the surplus to themselves. The question is, whether it would be competent for them, after doing so, to exereise-the power reserved to them in the mortgage deed. We think that it clearly would not, since such an exercise of the power would be derogatory to their own grant. 1 Sugden on Powers, *56. We are also of opinion that the building erected on the eleven-foot strip is an infringement of the rights, privileges, and easements secured to the Engs estate by the Vernon covenant of 1799, and that it is none the less an infringement because it was erected by the mortgagors, it having been erected after the mortgage, which was duly recorded. The power annexed to the mortgage was a power coupled with an interest, and it entitled the assignee of the mortgage to sell the estate, as it existed when it was given, discharged from any subsequent incumbrance or alienation created otherwise than by an exercise of the power reserved. 2 Jones on Mortgages, § 1654. The purchaser is therefore entitled to have the estate, with the rights and easements appurtenant to it, as they existed when the power of sale was given. Moreover, we do not think that it could be inferred, even against the mortgagors themselves, if they were still the owners of the estate, from their use of the eleven-foot strip, that they had renounced their rights and easements in said strip; for when they erected the structure across said strip they were in possession of both estates, using both together, so that neither was for the time being dominant and neither servient, the easements and servitudes appertaining to them being temporarily suspended. Washburn on Easements and Servitudes, *517. *538 Brands B. Beclcham, for Bull. William B. Sheffield, for Cozzens et al. Our decision is that Henry Bull, purchaser under the power of sale, is entitled to have the structure now built across the eleven-foot strip removed, and that it will be the duty of the owners of said strip to remove it when requested to do so by said Bull.