Porter v. Hubbard

• Decision Date: 05 February 1883
• Citation: 134 Mass. 233
• Parties: J. E. Porter v. George W. Hubbard
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

134 Mass. 233

J. E. Porter v. George W. Hubbard

Supreme Court of Massachusetts

February 5, 1883

Argued October 4, 1882 [Syllabus Material]

Worcester. Tort for the conversion of four boxes of tobacco. Answer, a general denial. Trial in the Superior Court without a jury, before Staples, J., who allowed a bill of exceptions, in substance as follows:

In 1875, Moses C. Porter, who owned a farm, a part of which was used for raising tobacco, and a part for various other crops mortgaged the tobacco land to Samuel H. Dickinson. On March 1, 1876, the equity of redemption of Moses was attached by Augusta A. Porter. On August 15, 1876, Dickinson made an entry for breach of the condition of his mortgage, and a certificate of entry was duly executed and recorded, which recited that such entry was "for breach of condition of the mortgage, and for the purpose of foreclosing the same, and of taking the rents and profits thereof." At the time of this entry, Moses was notified by the defendant, who acted as agent for Dickinson, and also as a subsequent mortgagee who had entered for breach of condition on the same day as Dickinson, that the crops would belong to the mortgagee, and that he, Moses, would be entitled to reasonable compensation for raising them. On November 11, 1876, the equity of redemption of Moses was sold on execution to Augusta, and a deed thereof to her was duly made and recorded. Moses, up to the last-named day, and after that Augusta, occupied the dwelling-house and other buildings on the farm, and carried on the farm as they severally thought proper, hiring the help, determining what crops should be raised, and raising the same, and, in general, deciding all questions relative to carrying on the farm. After November 11, 1876, Moses acted as agent for Augusta.

After August 15, 1876, Dickinson declined to be responsible for payment of hired help, or for seed purchased for raising crops; and, while claiming the crops, left the payment of help, of taxes, and of what might be required for fertilizers, to Moses; and there was no agreement to repay either Moses or Augusta for what they paid for labor, taxes, fertilizers and other expenses, except as above stated. In the fall of 1877, Moses having sold broom corn to pay taxes, the defendant denied his right to do so, and claimed that the crop belonged to the mortgagees. There was no notice to the defendant, or to Dickinson, till June 1878, that Augusta was carrying on the farm. At that time, in a conversation between the defendant and Augusta, she asked what the mortgagees claimed. The defendant informed her of the mortgages; that the mortgagees had taken possession for the purpose of foreclosure, and to take the rents and profits; that the crops raised belonged to the mortgagees, and that those who raised them would be entitled to a reasonable compensation for the labor. She said she must have enough of the crops to pay the plaintiff. The defendant replied, that the mortgagees objected to her taking any of the crops to pay him. She said she had borrowed $ 150 of him to raise crops. The defendant said the mortgagees expected to pay her what was just and reasonable for raising the crops, and, when they settled with her, she could pay the plaintiff.

In May 1877, after the tobacco crop was sown and had come up, Augusta borrowed of the plaintiff $ 150, of which she used $ 50 to pay the taxes for 1876, about $ 50 for hired men then working on the farm, and the balance for seed, corn used thereon. At the time of this loan, and as part of the transaction, Augusta agreed to repay the same out of the first crops she should raise, and such agreement was the inducement to the loan.

The tobacco crop of 1877 was severed from the land in September, and hung on poles till about December 1, and, in March 1878, was packed in forty boxes procured by Moses, and paid for by the defendant, and placed in a barn in charge of Augusta. In July 1878, Augusta delivered to the plaintiff four of these boxes, in payment of the loan, and made a bill of sale thereof; and these are the boxes in controversy in this action. At the time of this delivery, the plaintiff was informed by Augusta that the mortgagees claimed the tobacco crop of 1877, and that it should not be disposed of by her.

On December 11, 1878, the forty boxes of tobacco and other crops were replevied by Dickinson and the defendant, against the protest of Augusta. A few days afterwards, a settlement of the repletion suits was effected between Augusta and Dickinson and the defendant, in which there was a reckoning of what was her due; and it was considered what crops Moses and Augusta had had, and what timber they or either of them had cut and sold. Allowance was made for all the property either of them had taken or used, not before accounted for, and the expenses of carrying on the farm were put in. The plaintiff took no part in this settlement, but, after the sale of the forty boxes of tobacco and the application of the proceeds upon the mortgage notes, brought the present action.

After the taking possession on August 15, 1876, the defendant made advances from time to time to Moses in aid of expenses of carrying on the farm, insurance, &c. All of these payments were made by the defendant for Dickinson, who reimbursed him therefor.

Until the fall of 1878, nothing was said, either to Moses or Augusta, by Dickinson or the defendant, about their leaving the farm, and it was not insisted that they should leave until the spring of 1879.

On these facts the defendant asked the judge to rule that the plaintiff was not entitled to recover. The judge declined so to rule; and found specially, "that the possession taken and maintained by Dickinson and the defendant, the respective mortgagees, was not a personal occupation of the farm, or the actual appropriation of the rents and profits thereof including the tobacco in question, except in special cases where it was done by mutual agreement, the case of said tobacco not being one of said special cases; that after November 11, 1876, Augusta A. Porter occupied the farm until the spring of 1879, by permission of said mortgagees, as a...