Angier v. Agnew

• Decision Date: 07 November 1881
• Citation: Angier v. Agnew, 98 Pa. 587 (Pa. 1881)
• Court: Pennsylvania Supreme Court
• Parties: Angier, Trustee v. Agnew.

98 Pa. 587

Angier, Trustee versus Agnew.

Supreme Court of Pennsylvania.

October 18, 1881.

November 7, 1881.

October 18th 1881.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

ERROR to the Court of Common Pleas of Forest county: Of October and November Term 1881, No. 292.

Neill (Heywang with him), for plaintiff in error.—The court below held that we have no remedy. The question is, can a mortgagor of timber land, whose mortgage is recorded, sell and convey to a purchaser the right to strip the land of the timber, without liability on the part of the purchaser to the mortgagee. The timber, in Forest county, constitutes the chief value of the land, and the result of the decision below is, that the mortgagee, without fault on his part, is deprived of the security of his mortgage. We could not bring trover or trespass, there being no privity between plaintiff and defendants; nor replevin, nor estrepement, nor a bill in equity for an injunction, because the timber had disappeared. We therefore brought this comprehensive action on the case in the nature of an action for waste, our right to maintain which was virtually decided in Roberts v. Dauphin Bank, 7 Harris 71, 77; Denny v. Brunson, 5 Casey 382; McCullough v. Irvine, 1 Harris 438. The distinction between the action of waste proper and case in the nature of waste, is this, that whenever the former could be maintained for an injury committed by a privy, the latter may be maintained for such injury committed by a stranger: Patterson v. Cunliffe, 32 Leg. Int. 398. A mortgagor may cut timber to a reasonable extent, by implied license of the mortgagee, but he cannot denude a tract of timber-land. To what extent timber may be cut without waste is a question of fact for the jury, whether the action be in trespass or on the case: McCullough v. Irvine, supra; Coggill v. Mileburn & Co., 10 C. E. Green; Woodman v. Good, 6 W. & S. 172; McCay v. Wait, 51 Barb. 225; S. C., 8 Amer. L. Reg. (N. S.) 191; 18 Ibid. 588; Drown v. Smith, 52 Me. 141; Bond v. Lockwood, 33 Ill. 212; Page v. Robinson, 10 Cush. 99; Brady v. Waldron, 2 Johns. Ch. 148. The mortgagee may follow into the hands of a purchaser from a mortgagor a fixture severed from the mortgaged premises: Hoskin v. Woodward, 9 Wr. 42; Witmer's Appeal, Ibid. 455. In our case the mortgage was recorded and there was some other evidence to affect the defendants with notice of it, and the case should have been submitted to the jury.

C. W. Stone (with him E. L. Davis), for the defendant in error.—The court did not enter the nonsuit by reason of the form of action but because the elements of recovery did not exist. There was no evidence of any fraud on the part of the defendants, nor that they had actual knowledge of the mortgage, or of Douglass's insolvency. There is no duty on the part of the purchaser of standing timber or of coal, or minerals, to inquire if there is a mortgage on the land, or if the mortgagor is insolvent. A mortgagor in possession has the right in Pennsylvania to sell in the usual way the timber, coal and minerals thereon, unless the mortgagee stops him by ejectment or estrepement: Hoskin v. Woodward, 9 Wr. 44; Witmer's Appeal, Ibid. 455; Asay v. Hoover, 5 Barr 21; Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 419. The cases from other states cited on the other side do not apply, as a mortgagee there takes an estate in the land, not a mere security. The same rule exists in Connecticut, where the doctrine as to mortgages is the same as in Pennsylvania: Cooper v. Davis, 15 Conn. 556; Gardner v Heartt, 3 Iowa 234. See also Wilson v. Maltby, 59 N. Y. 127.

Mr. Justice GORDON, delivered the opinion of the court November 7th 1881.

Angier, the plaintiff, as trustee for the creditors of the Titusville Savings Bank, must stand or fall on the rights of the bank as mortgagee of Douglass, for his suit has no other foundation. Therefore, whether Douglass was solvent or insolvent at the time of the execution of the mortgage, or at the time he conveyed the timber in controversy, is of no real consequence, for the establishment of either of these conditions could neither extend nor abridge the rights of the mortgagee. Had the plaintiff proposed to prove a fraudulent combination between Douglass and the defendants to strip the land of its timber to the injury of the bank or its creditors, we would have had a question very different from the one now before us. Then the insolvency of the mortgagee might have been regarded as one of the facts or circumstances which induced the fraudulent combination. But as no such proposition was made the evidence offered was properly rejected.

We...