Howe v. Wadsworth , 59 N.H. 397 ( 1879 )

A mortgagor in possession has no right to remove fixtures from the mortgaged estate, and for their removal the mortgagee may maintain trespass quare clausum (Pettengill v. Evans, 5 N.H. 54), or against the assignee of the mortgagor, if the removal is by him. Smith v. Goodwin, 2 Greenl. 173. And, in general, for the protection of the interest of the mortgagee, he has the legal estate, though for many other purposes the mortgage is a mere security for the debt and only a chattel interest. Sutherin v. Mendum,5 N.H. 420, 429; Glass v. Ellison, 9 N.H. 69; Smith v. Moore, 11 N.H. 55,61, 63; Morrison v. Manchester, 58 N.H. 538, 561. Having the legal interest in the estate for the purpose of protecting his security, and being entitled to the full benefit of the entire mortgaged estate for the full payment of his debt, the mortgagee may follow and recover any part of the mortgaged property, removed without his consent, whenever and in whosesoever hands it may be found, either by retaking it, or by action of trover for damages. Smith v. Moore, 11 N.H. 55, 61, 63; Cole v. Stewart, 11 Cush. 181; Bryom v. Chapin. 113 Mass. 308; Gooding v. Shea, 103 Mass. 360, Laflin v. Griffiths, 35 Barb. 58; Hoskin v. Woodward, 45 Pa. St. 42; Hitchman v. Walton, 4 Mee. W. 409.

The plaintiff, by his purchase, acquired no more title to the lumber than the mortgagor had. The commercial rule, which protects negotiable paper in the hands of an innocent purchaser, without notice of infirmity of title, does not extend to the sale of chattels; and the plaintiff, by his purchase, acquired no title to the lumber, if it was removed and sold without the knowledge or consent of the mortgagees. The three hundred feet of lumber, not included in the mortgage, was so mingled with the mortgaged lumber as to be indistinguishable from it, and, until pointed out and claimed by the owner, might be taken and held by the mortgagees. Gilman v. Hill, 36 N.H. 311; Robinson v. Holt, 39 N.H. 557; Taylor v. Jones,42 N.H. 32. Though a demand was made for the whole lumber, it does not appear from the case that the mortgaged part was pointed out, identified, or claimed by the plaintiff before suit.

The attachment of the lumber by the defendant, on a writ in favor of the mortgagees, did not estop him from setting up the defence of a taking and sale under the mortgage by him as the mortgagees' agent, unless the attachment was made with notice to the mortgagees of their rights under the mortgage. However that may have been, if they had knowledge of their title at the time of the attachment, they could not afterwards set up a claim under the mortgage. If they received the money which came from the sale of the lumber, with a knowledge of its source and of their rights under the mortgage, they could not afterwards deny a consent to the sale, though the money was not applied on the mortgage debt.

Whether the mortgagees, or the defendant as their agent, had notice at the time of the attachment that the lumber came from the mortgaged premises, or whether they knew that the money paid them by the mortgagor, Williams, was a part of the purchase price of the lumber, does not appear by the case. The report may be recommitted to give the plaintiff an opportunity to show that the mortgagees had knowledge or notice in either particular. On the facts now appearing, there must be judgment for the defendant.

Case discharged.

STANLEY, J., did not sit: the others concurred.