McKelvey v. Creevey

• Citation: 72 Conn. 464,45 A. 4
• Parties: McKELVEY v. CREEVEY.
• Decision Date: 02 January 1900
• Court: Supreme Court of Connecticut

45 A. 4

72 Conn. 464

McKELVEY

v. CREEVEY.

Supreme Court of Errors of Connecticut.

Jan. 2, 1900.

Appeal from court of common pleas, Fairfield county; Howard J. Curtis, Judge. Action of replevin by Dotha McKelvey, a mortgagee, against Edward A. Creevey, for a furnace sold by the mortgagor to the defendant, by whom it was removed from the mortgaged premises, brought before a justice of the peace, and thence by the defendant's appeal to the court of common pleas, and there tried to the court. Facts found and judgment rendered for the defendant, and appeal by the plaintiff for alleged errors in the rulings of the court. Affirmed.

The finding states the following facts: On the 25th of January, 1895, Mary H. Hall, being the owner of a parcel of land In Bridgeport, executed and delivered a mortgage deed of the same, containing the usual covenants and condition of defeasance, to Burr and Knapp, and they on the same day assigned said mortgage to the plaintiff by quitclaim deed. Said mortgage and assignment were at once recorded. The plaintiff continued to be the owner of said mortgage till after this suit was brought. In September, 1898. "said mortgage became in default for condition broken"; and in an action to foreclose it the plaintiff obtained a decree of foreclosure in February, 1899. In January, 1899, "there was a furnace in the cellar of said house, which was standing therein over a cold-air pit made for a furnace. Said furnace was connected with the smoke, cold-air, and hot-air flues in said house." On the 20th day of January, 1899, the mortgagor, who since the giving of the mortgage had remained, and was then, in possession of the mortgaged premises, representing herself to be the owner of said furnace, asked the defendant to buy it; and he did so, paying to her therefor $10, which was its fair value. The defendant then removed the furnace from said premises, and from the possession of the mortgagor. He bought the furnace in good faith, having no actual knowledge of the mortgage, but he made no inquiries of the mortgagor or others as to her title to the furnace. Upon the facts found, the plaintiff claimed that she was entitled to reclaim the furnace from the defendant, and in this action. The court below ruled otherwise, and the errors assigned upon this appeal are all based upon this action of the trial court.

John C. Chamberlain and Elbert O. Hull, for appellant.

William H. Comley, Jr., for appellee.

TORRANCE, J. (after stating the facts). In the court below, and in the argument before this court, the case proceeded upon the assumption that the furnace in question was conveyed by the mortgage as a part of the real estate, by way of fixture; and for the purposes of the argument we adopt this assumption. Upon the facts found, the furnace must be regarded as having been severed from the realty by the mortgagor in possession before foreclosure, and as having been afterwards sold by her to the defendant, who bought with constructive notice of the mortgage, but otherwise in good faith and for value. The question presented upon the record is whether a fixture so severed and sold can be recovered by the mortgagee from such purchaser in an action of replevin. This question is to be determined by our own law in relation to the respective rights of mortgagor and mortgagee in the laud. In this state, as in many of our sister states, "the law of mortgages has been built up on a series of fictions. These have been created from time to time as a convenient means of defining and regulating the various estates to which conveyances may give rise." Ensign v. Batterson, 68 Conn. 289, 309. 36 Atl. 51. Some of these fictions, at first devised and applied in courts of equity, have for years past been recognized also by courts of law. Porter v. Seeley, 13 Conn. 504, 573. In form and in legal theory, under our law, a mortgage in fee is a conveyance of the fee to the mortgagee. It is an estate in the land upon condition, to become absolute upon nonperformance of the condition. The mortgagee is owner of the land, while the mortgagor has no legal estate therein until he performs the condition. If he fails to do so, all his right to the land is gone. In substance and effect, however, and except for a very limited purpose, the mortgage is regarded as mere security for the performance of the duty described in the mortgage deed; and the mortgagor is for most purposes regarded as the sole owner of the land, "as well after forfeiture as before the execution of the deed, and the mortgagee has rather a power than an interest, the use of which is strictly limited to the collection of the debt or enforcement of the duty which the mortgage was intended to secure." Porter v. Seeley, 13 Conn. 573. In this view of the matter, the "equity of redemption" is regarded as the land, and its owner as the owner of the land, for most purposes; while the "estate in fee" of the mortgagee is, except for a limited purpose, regarded as personal estate and mere security. Bank v. Lawler, 46 Conn. 243, 245; Downing v. Sullivan, 64 Conn. 1, 3, 29 Atl. 130. In accordance with this view it has been held, in the following cases, that the estate of the mortgagor is subject to dower; descends to heirs; may be attached and set off on execution; may, as real estate, confer rights of settlement; is devisable and taxable as real estate; and is based upon a title sufficient to maintain ejectment,—while to the estate of the mortgagee none of these incidents attach, save the right to maintain ejectment. Pish v. Pish, 1 Conn. 559; Barkhamsted v. Farmingtoh, 2 Conn. 605; Huntington v. Smith, 4 Conn. 235; Roath v. Smith, 5 Conn. 133; Swift v. Edson, Id. 531; Savage v. Dooley, 28 Conn. 411. As between mortgagor and mortgagee, however, it is the law of this state that the latter is regarded as having the legal title to the land (2 Swift, Dig. [1st Ed.] p. 166; Wakeman v. Banks, 2 Conn. 445; Smith v. Vincent, 15 Conn. 1; Downing v. Sullivan, 64 Conn. 1, 29 Atl. 130); but he is so regarded, as appears by the cases cited, only to a limited extent, and for a limited purpose. He is regarded as having the legal title, and therefore as legal owner, mainly for the purpose of obtaining, by ejectment or otherwise, possession of the land, and holding it, in order to make his security available in payment of his debt. To that end, in the absence of any agreement to the contrary, he may take possession when he pleases, when he can do so peaceably, and may bring his action of ejectment when he will, without previous notice or demand, and recover the land, with all the crops thereon. 2 Swift, Dig. (1st Ed.) p. 166. He has title and ownership enough to make his security available, but for substantially all other purposes he is not regarded as owner; but the mortgagor is so regarded,—always subject, of course, to the mortgage. It is upon this fact (that by our law the mortgagee is owner of the land for certain purposes) that the plaintiff in the present case bases her right to the severed fixture. She says that it was hers while it was attached to the land and that she did not lose her title to it by severance. Now, it is true, with regard to fixtures, which the owner in fee...