Wilbur v. Moulton

• Decision Date: 25 October 1879
• Citation: 127 Mass. 509
• Parties: Arabella J. Wilbur v. C. C. Moulton
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

127 Mass. 509

Arabella J. Wilbur v. C. C. Moulton

Supreme Court of Massachusetts

October 25, 1879

Argued September 24, 1878

Hampden. Tort for the conversion of a quantity of turf. Answer, a general denial. Trial in the Superior Court, before Allen J who allowed a bill of exceptions, which, after stating the case, was as follows:

"The land from which the turf was taken was owned by one Fowler subject to a mortgage to the plaintiff; the conditions of the mortgage had been broken; but no foreclosure proceedings had been begun, and Fowler was still in possession. The defendant, while doing some repairs on the house and door-yard of one Rice, in the city of Springfield, employed Fowler to turf the door-yard of said Rice. Fowler took turf for that purpose from land covered by the plaintiff's mortgage, and with it turfed said yard. The defendant was not present when the turf was delivered and placed upon Rice's yard. The defendant paid Fowler for the turf and for his labor, and charged for said turfing in his bill to Rice. No question arises upon the question of demand.

"The defendant asked the judge to rule that upon this state of facts the plaintiff could not maintain her action. The judge refused so to rule; the case was submitted to the jury, and a verdict was rendered for the plaintiff. The defendant alleged exceptions to the foregoing refusal to rule."

Exceptions overruled.

A. M Copeland, for the defendant.

G. M Stearns, for the plaintiff.

OPINION

Morton, J.

This bill of exceptions, as we understand it, does not show that there was any erroneous ruling in matter of law at the trial. The question whether the plaintiff as mortgagee could maintain this action for the value of the turf removed from the mortgaged land is governed by the principles stated in Searle v. Sawyer, ante, 491. Upon this point, the instructions given by the court were not excepted to, and are not stated. It must, therefore, be assumed that they were correct; and that the jury found that Fowler, in severing the turf, acted without any express or implied license from the plaintiff, and was a trespasser. This being so, the plaintiff can recover the value of the turf from the defendant, if he converted it to his own use. The defendant does not argue in this court, that, under the circumstances of this case, the mortgagee cannot follow the turf and recover its value of Fowler; but he contends that he is not liable...