68 Me. 204 | Me. | 1878
The chief question to be determined in this ease arises out of the relations of the plaintiff, as mortgagee, and the defendant’s vendor, Jonathan Carter, as mortgagor of the farm upon which the manure in controversy was produced. When Carter sold and delivered the manure to the defendant he was an outgoing mortgagor, after condition broken. The case has been somewhat complicated, from the fact that it has been presented as depending mainly upon the law of landlord and tenant, instead of the law applicable to mortgagor and mortgagee.
The case, however, in its facts, belongs to the latter class, and is clearly distinguishable from the former in respect to the law
It was expressly held in Lynde v. Rowe, 12 Allen, 100, that if fixtures are added by a tenant at will of the mortgagor, his right to remove them must be determined by the rule which prevails as between mortgagor and mortgagee, and not that which prevails as between landlord and tenant.
In general, manure, made in course of husbandry upon a farm, is so attached to and connected with the realty, that, in the absence of any express stipulation or understanding to the contrary, it passes as appurtenant to it. This principle has been applied in the case of manure taken from the barnyard of a homestead and piled upon the land, though not broken up, nor rotten, nor in a
The manure in controversy was produced in the ordinary course of husbandry by the mortgagor, while in possession of the mortgaged premises. In the absence of any agreement or stipulation to the contrary, that manure constituted a part of the realty, whether it is to be regarded in the nature of a fixture or as appurtenant to the freehold; by fulfilling the conditions of the mortgage, the defendant’s vendor might have enjoyed the full benefit of this product of his husbandry in the future crops, but by neglecting so to do, and selling it, he forfeited this right and committed a tort upon the plaintiff. The defendant acquired no title to the property by the sale from Carter, but thereby incurred the liability to compensate the plaintiff for its value.
The measure of damages is the fair market value of the manure at the time of the taking, including what would be equivalent to interest on that amount from the date of the writ. Although the evidence is somewhat vague and unsatisfactory upon this point, we think that it warrants the conclusion that there were seven cords of the manure, worth three dollars a cord. If to this estimate there is added the usual allowance for withholding payment from the plaintiff from date of the writ, we have the sum of $22.68, for the amount of damages to be paid by the defendant.
Judgment for plaintiff for twenty-two dollars and sixty-eight cents.