Jeffers v. Pease

• Decision Date: 08 June 1902
• Citation: 52 A. 422,74 Vt. 215
• Parties: JEFFERS v. PEASE et al.
• Court: Vermont Supreme Court

52 A. 422

74 Vt. 215

JEFFERS

v. PEASE et al.

Supreme Court of Vermont Essex.

June 8, 1902.

Exceptions from Essex county court; Taft, Judge.

Action by M. G. Jeffers against H. G. Pease and Joshua Stevens. Judgment for plaintiff, and defendants bring exceptions. Affirmed.

The plaintiff held a properly recorded, overdue mortgage on a certain piece of land, from which the mortgagors cut a quantity of timber and sold it to the defendants, who paid them for it manufactured it into lumber, and converted it to their own use. The plaintiff also held an unsecured note against the mortgagors. The plaintiff had the benefit of the timber cut by one Wyman on a portion of the mortgaged land, under an agreement with the mortgagors to account to them for it He applied the avails of the Wyman timber on the unsecured note. The suit is brought to recover the stumpage value of the timber converted by the defendants.

Argued before ROWELL, C. J., and MUNSON, START, WATSON, STAFFORD, and HASELTON, JJ.

Harry Blodgett, for plaintiff.

May & Simonds, for defendants.

WATSON, J. The overruling of the motion to recommit the report was a matter of discretion, and not revisable in this court Wilkinson's Adm'r v. Wilkinson, 61 Vt. 409, 17 Atl. 795.

The record of the mortgage was constructive notice to the defendants that the land on which the logs purchased by them were cut was incumbered by such a mortgage to secure the payment of a note to the plaintiff, of the same date as the mortgage, and for $156.51, with interest annually. The defendants were thereby put upon inquiry, and they were chargeable with knowledge that the note and mortgage were overdue, for Inquiry of the plaintiff would have disclosed that fact Allen v. Gates, 73 Vt. 222, 50 Atl. 1092.

The defendants manufactured the logs into lumber and converted it to their own use. That the mortgagee may maintain trover for wood or timber cut upon the mortgaged premises after condition broken, and converted, is well settled. Langdon v. Paul, 22 Vt. 205; Morey v. McGuire, 4 Vt 327; Lull v. Matthews, 19 Vt 322; Wright v. Lake, 30 Vt 206.

The plaintiff told the mortgagors, G. W. Stevens and P. W. Gallup, that he would account to them for the lumber taken off by Wyman; but there was nothing said how or on what he would so account. The mortgagors gave no directions concerning the application. The plaintiff then held their unsecured note for $35.88, and he Indorsed thereon $25, which he thought to be the value of the Wyman...