75 Me. 279 | Me. | 1883
Trover for machinery, tools and other articles, claimed by the plaintiffs as their personal property, hy the defendant as parts of real estate purchased by him.
The land, "with the steam-mill fixtures, machinery, buildings,” was conveyed to- the Bangor Savings Bank by the firm of Palmer and Johnson, October 8, 1869, by a deed of warranty intended only as a mortgage. That firm on April 1, 1873, transferred its business to the new firm of Palmer, Johnson and Company which, continued in the occupation of the premises from that time till the bank took possession under its deed in November, 1877. The plaintiffs represent whatever title either of these firms had in the property in dispute. The defendant represents the bank, whose title he acquired by a deed dated November 1, 1879. In his testimony he does not claim to stand in any better position than that. " The bank sold me just what their mortgage covered.”
In November, 1877, soon after the bank took possession, the plaintiff, Palmer, removed from the steam-mill to his house certain parts of the machinery and tools, claiming them as his own. This removal was known to the officers of the bank either before, or very soon after it took place. It was also known to the bank that Palmer claimed the machinery in the planing mill, which was left upon the mortgaged premises, as his, and with one of the trustees at least, he stipulated that he should lose no rights by allowing it to remain where it was.
The treasurer of the bank, subsequently in conversation with Palmer, claimed that if the planing mill machinery and the property which had been removed from the steam saw mill to Palmer’s house were not included in the mortgage to the bank, but were Palmer’s property, he ought to repay to the bank the amount which it had expended to discharge the taxes upon them for the years 1876 and 1877. To this claim Palmer assented and in pursuance thereof on December 17, 1877, paid to the bank the sum of one hundred and eighteen dollars, taking the following receipt signed in the name of the. bank by its treasurer: "Received of Palmer, Johnson & Co. one hundred and eighteen
The treasurer testifies: " After the payment of this one hundred and eighteen dollars, I told the trustees what I had received and the books showed it; I can’t say they all knew it but the books were submitted to their examination, most every day more or less of them were in and looked over the books. I think I spoke to the president in regard to the receipt of this money ; I think I told him that I had succeeded in collecting so much money on account of taxes paid on the Brewer property, from Palmer and Johnson.”
About two years later the bank conveyed the real estate to the defendant, and the question is whether that deed gave him title to the property on which the taxes' had been so paid by Palmer. We think not.
The effect of the deed has already been considered. ■ It was simply to put the defendant in the position of the bank. But the bank had already waived its claim upon the property mentioned in the receipt. It had received and retained a valuable consideration for assenting to Palmer’s claim of title to it as personal property. This was the only reason for Palmer’s making the payment .and the only ground on which the treasurer received it. The money was not demanded nor paid on account of the mortgage debt, nor as an assessment due from the mortgagors in possession, but solely upon the ground that, if the property was Palmer’s, he ought to pay the taxes upon it. Assent to his title, waiver or release of the claim of the bank, were in substance the inducements held out to Palmer to make the payment. He had already removed the steam-mill machinery to his house, claiming it as his, and this fact was known to the bank. The receipt is in terms for taxes upon property so removed and upon the machinery in the planing mill, manifestly recognizing the facts of the situation, precisely what it was on which it belonged to Palmer to pay the taxes, that these two lots of property stood alike in this respect and differently from the mortgaged property, Palmer’s claim of title extending to both.
It is not necessary to consider the prior authority of the treasurer or other officer of the bank to act for it in these respects, because the case shows sufficient evidence that these acts of its agents were ratified by the corporation. The conclusion from the testimony cannot be avoided that this transaction was known to the trustees at the time. Palmer’s claim of title, his assertion of it by removing part of the property from the mill to his house, and by effecting an arrangement with some of the corporate officers, by which he could leave the rest at the mill without losing any rights, his payment of the one hundred and eighteen dollars, and the treasurer’s receipt of it, as an amount due for taxes upon property which Palmer owned, these facts being known, the acceptance and retention of the money became corporate acts, acts of the bank. It still holds the one hundred and eighteen dollars, while its grantee (having only its rights) claims the property as part of the realty. To allow this claim would be to disregard the agreement clearly implied in the acts of the parties. The deed did not convey to the defendant property which the bank had already received a valuable consideration for allowing Palmer to consider his.
There are other parts of the evidence which strengthen this conclusion that the bank released its claim upon the property mentioned in the receipt, such as that during the two years while the bank was in possession, before the deed to the defendant, it made no effort to recover the property which Palmer had carried away, and also that during the same time it allowed him to let the planing mill machinery to one Groodwin for a while, and receive the rent therefor.
Of the articles mentioned in the schedules annexed to the writs, it is only to these two classes, the planing mill machinery, and the property removed from the steam saw mill, that the
Defendant defaulted. Assessment of damages at nisi prius.
