48 Mass. 40 | Mass. | 1843
All buildings erected and fixtures placed on mortgaged premises, by the mortgagor, must be regarded as permanently annexed to the freehold. They go to enhance the value of the estate, and will therefore enure to the benefit of the mortgagee so far as they increase his security for his debt; and to the same extent they enhance the value of the equity of re demption, and thereby enure to the benefit of the mortgagor. Winslow v. Merchants Ins. Co. 4 Met. 306. There is no necessity to adopt any liberal rule in regard to fixtures, to enable a mort gagor to remove what he has erected at his own expense; because he has the full benefit of all such improvements when he regains the estate by redemption, which he may do, simply by payment of his actual debt. The general rule of the common law, therefore, that what is fixed to the freehold becomes part of the realty, and passes with it, has its full effect, in regard to things erected on the land by an owner, who subsequently mortgages the land, and also in regard to things erected by the mortgagor after the mortgage. It was argued that a mortgagor in possession is tenant to the mortgagee, and then authorities were cited to show that temporary buildings, erected by a tenant at his own expense, might be removed. This, we think, is founded on a fallacy. It is often said, that a mortgagor is tenant at will to the mortgagee. It would be more accurate to say that in many respects he is like a tenant at will. As between mortgagor and mortgagee, the fee vests in the latter, by operation of the deed; but so long as the mortgagor, without the-entry of the mortgagee, continues in possession, that possession is rightful, and of course he must be considered a tenant. But he is not liable for rent, and in that respect is not like a tenant, but an owner occupying his own land. But the likeness fails in another particular, which renders the relation of landlord and tenant, and the rules adapted to that relation, inapplicable ■ If a tenant for years erects fixtures at his own expense, and for his own use, as such tenant, if he could not remove them at or be
The court are of opinion that both of the buildings, as described, were fixtures. The larger was an unfinished dwelling-house, intended to stand on the land where it was erected, as an improvement of the realty; the other was a smaller building, standing on posts fixed in the ground. They were both of them thus annexed to the realty. Whether the removal of these buildings, by the second mortgagee, was waste, as against the first mortgagee, or in what way the second mortgagee would be liable to account for them, on a redemption by Conolly, or any person claiming under him, we need not now inquire. At the time of Conolly’s decease, the fee of the mortgaged premises, as between him and his mortgagees, was in the latter, and the removal of these buildings by either of them vested no property in the materials, in his representative; and therefore this action of trover cannot be maintained. [See Fryatt v. The Sullivan Co. 5 Hill, 116.]
