Chase v. Wingate

• Decision Date: 20 May 1878
• Citation: 68 Me. 204
• Parties: ANDREW J. CHASE v. GEORGE W. WINGATE.
• Court: Maine Supreme Court

68 Me. 204

ANDREW J. CHASE v. GEORGE W. WINGATE.

Supreme Judicial Court of Maine.

May 20, 1878

ON REPORT.

TROVER for ten cords of manure, valued at $40. Plea, general issue. The defendant claimed title by purchase from one Carter, the mortgagor in possession of the farm, of which the plaintiff was mortgagee, and on which the manure was made.

The plaintiff had obtained a judgment as on mortgage against Carter and, in due course, a writ of possession which he placed in the sheriff's hands for service. The evidence tended to show that, on Carter's solicitation, the plaintiff allowed him to remain a while, and at a time agreed Carter left; that, in the night before leaving, according to previous arrangement with the defendant, he hauled the manure with the defendant's team from the mortgaged land on to the land of the defendant, and received from him pay therefor, both Carter and the defendant knowing that the plaintiff claimed to own it, as mortgagee, and had forbidden its removal.

A M. Robinson & W. P. Young, for the plaintiff.

A. G Lebroke, for the defendant, contended that the permission by the plaintiff for Carter to remain constituted the relation of landlord and tenant, and that Carter was his tenant at will, and the manure was liable to be seized on execution and sold for the payment of Carter's debts. Staples v. Emery, 7 Me. 201. And that of course he would have a right to sell it. The case of Lassell v. Reed, 6 Me. 222, deciding that the outgoing tenant had no right to remove the manure after the tenancy had terminated, was not adverse to his right to sell before the termination of the tenancy. But even that case was placed upon doubtful grounds of public policy for the encouragement of agriculture; for manure was sure to be used, and it did not concern the public which of two adjoining farms it should enrich.

DICKERSON J.

The chief question to be determined in this case arises out of the relations of the plaintiff, as mortgagee, and the defendant's vendor, Jonathan Carter, as mortgagor of the farm upon which the manure in controversy was produced. When Carter sold and delivered the manure to the defendant he was an outgoing mortgagor, after condition broken. The case has been somewhat complicated, from the fact that it has been presented as depending mainly upon the law of landlord and tenant, instead of the law applicable to mortgagor and mortgagee.

The case, however, in its facts, belongs to the latter class, and is clearly distinguishable from the former in respect to the law involved in the question under consideration. At common law, whatever is fixed to the freehold becomes a part of the realty and passes with it. This rule has been relaxed in favor of tenants and others who have made erections and improvements at their own expense and for their own use, upon land in which they had only a temporary interest, because of the hardship they would be subjected to if they could not remove such fixtures at or before the expiration of their term. But this reason does not apply in the case of mortgagors. The mortgagor, for most purposes, is regarded as the owner of the estate, and the improvements made by him while in possession of the mortgaged premises, in contemplation of law, are deemed to be made for himself and to enhance the general value of the estate, and not for its temporary enjoyment. Besides, the mortgagor pays no rent or equivalent for the use and enjoyment of the mortgaged premises, is...