Humphreys v. Newman , 51 Me. 40 ( 1863 )

The opinion of the Court was drawn up by

Appleton, C. J.

It appears that, on March 25, 1854, Freeman Clark conveyed to Mary E. Harding a tract of land in the city of Bath; that on the same day Mrs. Harding and Ephraim Harding, her husband, joined in a mortgage of the same premises to said Clark to secure their joint note, given in part for the pui’chase money; that Ephraim Harding, with the knowledge and consent of his wife, erected thereon a dwellinghouse and outbuildings, but with the expectation and intention on the part of both that the erections, so made, should become permanently affixed to, and a part of the realty; that, on ISIov. 6, 1855, Ephraim Harding and Mary E. Harding conveyed to Ephraim K. Harding, for'a valuable and sufficient consideration, the lot before inferred to, "with the buildings thereon situate,” who, on June 23, 1856, deeded the same to the defendant; and that this action is brought for the alleged conversion of the dwellinghouse and outbuildings thus erected.

The plaintiff, having a demand against Ephraim Harding, on Nov. 6, 1854, commenced a suit thereon, in which the buildings in controversy were attached as personal property, obtained judgment and caused the same to be sold on execution and became the purchaser thereof. On Nov. 30, 1858, he demanded these buildings of the defendant, then in possession, under his title already set forth, who declined to surrender the same. Whereupon this suit was commenced.

The general presumption of law is, that whatever is annexed to the soil becomes part of the same. Buildings voluntarily erected on the land of another and without the consent of the owner become part of the real estate. Pierce v. Goddard, 22 Pick., 559. If the builder has an interest in the land as the husband of the tenant in dower, the building at once becomes a part of the realty. Washburn v. Sproat, 16 Mass., 489. So if he has an interest in the soil as reversioner or remainder man. Cooper v. Adams, 6 Cush., 87. A tenant by courtesy is created by operation of law, and no buildings erected by such tenant by consent of the wife will thereby become personal property. Doak v. Wiswall, 38 Maine, 570. But if a house is erected by one man upon the land of another by his assent, and, upon an agreement express or implied, that the builder may remove it when he pleases, it does not become a part of the real estate, but remains' a personal chattel. Dame v. Dame, 38 N. H., 429.

The evidence satisfactorily establishes the fact, that it was the intention of Ephraim Harding, that the buildings by him erected, were to be, and remain a part of the freehold, and thus to become the property of his wife. Nor does the proof show any fraudulent intent on his part in so doing, he being solvent at the time.

When an erection, though made with the consent of the owner, is, with the express or implied agreement of the owner of the soil and the person making the erection, that it shall become and remain a part of the freehold, it must be regarded as real estate and not as personal property. Sudbury v. Jones, 8 Cush., 184; Murphy v. Marland, 8 Cush., 578; Fuller v. Taber, 39 Maine, 521. Such is the case before us.

If the buildings became the property of Mary E. Harding by accession, and the intention of her husband and herself was that such should be the result, then the plaintiff acquired nothing by his sale on execution, for the buildings sold did not belong to the judgment debtor, and this action cannot be maintained.

Even if the buildings wore the’ property of Ephraim Harding, the title to them would enure to Freeman Clark, the mortgagee. Harding having joined in a mortgage of the premises to him, would be estopped by the covenants of his deed to assert a title to land mortgaged or the buildings erected thereon. The mortgage having been recorded, the plaintiff must be held affected with knowledge of its existence and of the prior rights of the mortgagee.

When the demand was made, the mortgage to Clark was in full force and the equity of redemption was in the defendant. It is well settled that the mortgager has no right to remove buildings or other fixtures erected by him on mortgaged premises, after the execution of the mortgage. Ephraim Harding would have been liable in trespass to the mortgagee, though out of possession, had he, Harding, removed his erections. The defendant in possession, having the equity of redemption, represents the title of the mortgager, and would have no superior rights of removal to him. He, too, would be liable to the mortgagee if he had removed these buildings. He cannot be liable to the plaintiff for declining to do what he could not legally have done. He is not to be deemed guilty of a trespass for not committing one. Corliss v. McLagin, 29 Maine, 115; Cole v. Stewart, 11 Cush., 181; Butler v. Page, 7 Met., 40.

Plaintiff nonsuit.

Davis, Kent, Walton and Dickerson, JJ., concurred. Barrows, J., having been of counsel, did not sit in this case.