Gooding v. Shea, 103 Mass. 360

Gooding v. Shea

103 Mass. 360 | Mass. | 1869

Wells, J.

There are two counts in the declaration relating to each lot of land and dwelling-house. The plaintiff is third mortgagee of each parcel, by separate mortgages, containing a clause against taking possession until breach. There had been no breach at the time of the alleged tort.

The first count, relating to each parcel, is in the nature of trespass quare clausum fregit, and cannot- be maintained, because of the want of possession or right of possession at the time of the alleged trespass. Page v. Robinson, 10 Cush. 99. Woodman v. Francis, 14 Allen, 198.

The second count in each case sets forth the actual condition of the title, and alleges that the defendant “ forcibly entered said dwelling-house” and removed certain fixtures, “by means whereof the plaintiff’s said security for his said loan was greatly lessened and destroyed.” We do not think this count sets forth the entry as a violation of the plaintiff’s possession, or possessory right; but only as the means by which an injury was caused to his mortgage security.

No question is raised here in regard to the liability of the defendant to some one for the fixtures so removed. The points of the defence are, that the mortgagee in possession can alone recover; or, if either mortgagee may do so, it must be the first mortgagee only.

The mortgagor might undoubtedly maintain an action of trespass ; and damáges for the unlawful removal of fixtures would be recoverable in such action by way of aggravation. Earle v. Hall, 2 Met. 353. For the removal of crops, or other property connected with the land, which the mortgagor himself might have removed, his right of recovery would be exclusive. Woodward v. Pickett, 8 Gray, 617. But fixtures he could not himself remove, against the right of the mortgagee, nor permit to be removed; nor can he have any right to withhold the compensation or iamages for them from the mortgagee, in whom the *363legal title is. The mortgagee may recover their value against the mortgagor or any other party who may be responsible for their removal. Cole v. Stewart, 11 Cush. 181. Such right to recover depends upon the title, and not upon possession, or the right of present possession, of the land. The right of present possession only affects the form of action in such case. Although the mortgagor in possession may recover, in an action of trespass, for the value of fixtures removed by a stranger to the title, his right to their value is subordinate to that of a mortgagee, and therefore cannot be set up by the defendant to defeat a recovery for the same by such mortgagee. The mortgagor’s right of action, based upon his possession, does not depend upon, nor necessarily include, the right to recover for the aggravation by removal of fixtures. Phelps v. Morse, 9 Gray, 207. The right to recover the value of the fixtures is separable from that to recover for “ breach of the close.” Bickford v. Barnard, 8 Allen, 314. It is incidental only to the action of trespass. But, as the injury affects the estate, it may be sued for directly by any one in whom the legal interest is vested. A second or third mortgagee, though not in possession, has a sufficient interest in the estate to maintain an action for such an injury. Although it is true that a stranger may thus be liable to either of the several mortgagees, as well as to the mortgagor, it does not follow that he is liable to all successively. The superior right is in the party having superiority of title. But the defendant can resist neither, by merely showing that another may also sue, or has sued. If he would defeat the claim of either, he must show that another, having a superior right, has appropriated the avails of the claim to himself. The demand is not personal to either mortgagee, but arises out of and pertains to the estate; and, when recovered, applies in payment, pro tanto, of the mortgage debt, and thus ultimately for the benefit of the mortgagor, if he redeem. It differs in this respect from the claim for insurance in King v. State Insurance Co. 7 Cush. 1, cited by the defendant. The defendant has the same means of protection against four judgments that any one has who is liable, for the same cause, to either of several parties *364having different or successive interests in the subject matter. Due satisfaction will discharge all the claims, if made to a party having the prior right. But neither can be defeated without some appropriation of the claim to the use of him who holds a prior right. Thus it is no defence to this suit, that the mortgagor has also a right of action ; nor even that he has brought such an action; because the right of the plaintiff is superior to that of the mortgagor. A superior right in Mary A. Lewis will not avail, as the plaintiff has since become the owner of that title. Nor is the existence of a superior right in the savings bank, as first mortgagee, a defence. The defendant shows no satisfaction of that claim, no demand made upon him by the savings bank, and no authority or right from the bank to resist the claim of the plaintiff here, in behalf of or for the benefit of the first mortgagee.

It is not contended that the plaintiff’s mortgage has been satisfied and discharged by the proceeds of the sale under the power of sale in the Lewis mortgage. The correctness or fairness of those proceedings, and the responsibility of the plaintiff for the full value of the property, or the amount realized upon the second sale, may be open to the representatives of the mortgagor in a suit therefor; but this defendant is not in such privity as to be entitled to inquire into the relations or the state of the account, so far as it depends on equitable considerations, between the mortgagor and mortgagee.

The right of the plaintiff to recover in this action does not depend upon the sufficiency or insufficiency of his security. Until his whole debt is paid, he cannot be deprived of any substantial part of his entire security without full redress therefor. Upon the facts reported, we are satisfied that the ruling of the judge who heard the case, allowing the plaintiff the full amount of the damages to the estate caused by the removal of fixtures, was correct. Exceptions overruled