Hagar v. Brainerd, 44 Vt. 294

Hagar v. Brainerd

44 Vt. 294 | Vt. | 1872

The opinion of the court was delivered by

Ross, J.

I. The defendant’s first exception is to the admission in evidence of the plaintiff’s mortgage deed of the premises from Mary Ann Turner, and the foreclosure of the same. They insist that the dwelling-house and underpinning stones sued for were but the chattels of Mary Ann Turner, on the land, and not capable of being conveyed by mortgage; that there were conditions in the lease, which for the last three years was in parol, or a parol extension of a written lease, which rendered her a tenant at sufferance of Mr. Seymour ; and that, as Mr. Seymour might have terminated the lease at any time, they, having taken Mr. Seymour’s interest in the land, stood in his rights, and could terminate the lease, enter, and remove the house and stones, without being liable therefor to the plaintiff, who, at best, stood in the rights which Mary Ann Turner acquired under the lease. It is to be observed that the defendants by their pleas in bar, and by their appraisal of the land damages, admit Mary Ann Turner’s right to occupy the premises till May 1, 1867. By these admissions they are estopped from denying the facts they have thus conceded. We entertain no doubts but that Mary Ann Turner, having . an estate in the premises which expired May 1, 1867, occupied by a dwelling-house, which had been placed there with the permission of the owner in fee, had an interest in the property that she could convey by mortgage.' It was an interest in real estate — the right to use it for a limited time with a dwelling-house. The house and underpinning stones became attached to and a part *300of that interest. It was such an interest as could have been taken by a levy, and set off on an execution in satisfaction of a judgment against her. “ The word land’or lands, and the words real estate, shall be construed to include lands, tenements, and hereditaments, and all rights thereto, and interests therein.” General Statutes, chap. 4, § 8. “ Conveyances of land, or of any estate or interest therein may be by deed,” &c. General Statutes, chap. 65, § 1. The plaintiff having a mortgage interest in the pi-emises, such an interest as Mary Ann Turner had, as the court properly held, 'had the right to show it by his deed, and the proceedings to foreclose the same.

II. The defendants excepted to the ruling of the court, refusing to dismiss the plaintiff’s third count for misjoinder. They cite Keyes v. Prescott, 32 Vt., 86, to show that trespass on the freehold and on the case cannot be joined. The court in that case decide that a count for a penalty to recover treble damages for entering upon the freehold and cutting and removing growing trees, and a count in trover cannot be joined ; but hold that trespass on the freehold and on the case, when for the same cause of action, can be joined as authorized by the General Statutes, chap. 33, § 14. Alger v. Carey, 32 Vt., 382. All the counts in the plaintiff’s declaration are to recover for the removal of the same dwelling-house and underpinning stones.

III. The defendants’ third exception is to the refusal of the court to direct a verdict for the defendants, “ for the reason that there was no proof in the case supporting either count of the declaration.”

The plaintiff proved that he had a mortgage of the premises from Mary Ann Turner, and that he had foreclosed the same just as he alleges in the third count in the declaration, and gave evidence tending to show that the defendants entered upon the premises covered by his mortgage, and removed the dwelling-house and underpinning stones. This exactly supported the third count in the declaration as was held by the court. This disposes of all the questions actually raised by the exceptions.

IV. The counsel upon both sides have discussed the case as though the defendants’ third exception was in regard to the right *301of the plaintiff to maintain an action against the defendants, under the conceded facts in the case. We will, therefore, consider it from that point of view. The defendants insist that the plaintiff, having only a mortgage interest in a leasehold estate, cannot maintain this action against them, who have proceeded under the statute to condemn, and pay 'for, the interest of the owner in fee, and of the lessee. Can they justify the removal of the dwelling-house and underpinning stones, under either the right of the owner of the fee, or the right of the lessee ? They cannot justify under the right of the owner of the fee. He had parted with his right to use and occupy the premises to the lessee, and could not have entered and removed the house and underpinning wall till the expiration of the lease. The defendants understood this, and, therefore, had their commissioners award damages to the lessee, because they took her unexpired term of the leasehold estate, and compelled an immediate removal of the house. The defendants stand no better than the owner of the fee, while justifying under his rights. They cannot justify under the rights of the lessee. The decree of foreclosure establishes that the condition of the mortgage had been broken. Upon the happening of that event, at law the interest of the lessee in the premises became absolutely vested in the plaintiff, and the plaintiff had a right to the immediate possession of the premises. Thereafter the mortgagor holds as tenant of the mortgagee, whether as tenant at will, or at sufferance, or as tenant by mortgage, matters not. 2 Wash. Real Property, 517, 518. In Moore, adm’r, v. McGuire, 4 Vt., 327, the court held that if a mortgagee, after condition broken, assign the mortgage, and the mortgagor cut timber and leave it upon the premises until after the assignee takes possession, the mortgagor cannot maintain trover against the assignee for using the timber. The court says : “ Upon this state of facts, the said intestate was a wrong-doer in cutting the timber, and he could gain no title to it against the defendant, who was then owner as mortgagee, with a right of possession, by such wrongful cutting. The said intestate’s right to possession, under our statute, had ceased with the arrival of the pay-day without payment. His possession, when he cut the timber, was a mere tenancy at will.” In Lull v. Mathews, *30219 Vt., 322, the court held that the purchaser of wood at a sheriff’s sale, cut on the mortgaged premises by the mortgagor after condition broken, and suffered to remain on the premises till after the day of redemption expired, obtained no title to the wood against the mortgagee ; that the mortgagor was a wrong-doer in cutting the wood, and acquired no title to it, and that the purchaser, by the sale, obtained only the mortgagor’s title. In Langdon v. Paul, 22 Vt., 205, the court, upon full consideration, held that the mortgagee could maintain an action on the case, in the nature of waste, or of trover, against the mortgagor, for timber cut on the mortgaged premises after a decree of foreclosure, and, before the expiration of the time limited for redemption. Mr. 'Washburn, in the first volume of his work on Real Property, p. 529, states the same doctrine. He says : “ And although a mortgagee may not have a technical action of waste against the mortgagor in any case, he may have trespass •quare clausum for any act done by him or his authority, essentially impairing the inheritance, such as cutting timber, tearing down houses, fixtures, and the like, though trespass will not lie against the mortgagor, or his tenant, for any acts of occupation done by either, before entry made by the mortgagee, though after condition broken; nor will assumpsit lie for rent in such a case.” By these authorities, if Mary Ann Turner, the lessee of Mr. Seymour, and mortgagor of the plaintiff, had removed the house and underpinning wall, under the facts which the jury have found existed, at the time the defendants removed them, the plaintiff could have maintained an action of trespass quare clausum, or an action on the case in the nature of waste, against her for such removal. How do the defendants, justifying under her rights, stand any better than she would ? We are unable to find any better reason for protecting them, though they are the representatives of a corporation, than for protecting the woman in whose rights they have removed the house and underpinning wall. The defendants rely considerably upon the provisions of sec 17 of ch. 28, of the Gen. Statutes, which requires the commissioners to give twelve days notice to the “ occupants or owners of the lands to be appraised,” and aver that they have complied with this statute. Can it be held, that if they give notice *303to tbe occupant, and not to the owner, and appraise and pay the damages to the occupant, the owner is without remedy ? We think not. The plaintiff was the owner of the house and underpinning wall, and of the leasehold interest in the premises. The commissioners have given him no notice, awarded him no damages; neither have the defendants paid him any. Sections 21, 22 and 23 of the same chapter, point out a method of procedure for the protection of the defendants, where the owner is unknown, “ or where there are conflicting claims to the title, or where such lands are encumbered by mortgages, attachments, or levy of execution, or .otherwise.” The defendants did not resort to this plain provision of the statute to protect themselves, but appraised the leasehold estate to the wrong person, and paid the damages to the wrong person. As regards the plaintiff, the owner, they entered the premises, removed the house and underpinning wall, without notice, or appraisal of damages, or the tender of compensation by way of damages, and were wrong doers.

Judgment of the county court is affirmed.