45 A. 4 | Conn. | 1900
In the court below and in the argument before this court, the case proceeded upon the assumption that the furnace in question was conveyed by the mortgage as a part of the real estate, by way of fixture, and for the purposes of the argument we adopt this assumption.
Upon the facts found the furnace must be regarded as having been severed from the realty by the mortgagor in possession before foreclosure, and as having been afterwards sold by her to the defendant, who bought with constructive notice of the mortgage, but otherwise in good faith and for value. The question presented upon the record is whether a fixture so severed and sold can be recovered by the mortgagee from such purchaser in an action of replevin.
This question is to be determined by our own law in relation to the respective rights of mortgagor and mortgagee in the land. In this State, as in many of our sister States, "the law of mortgages has been built up on a series of legal fictions. These have been created from time to time as a convenient means of defining and regulating the various estates to which conveyances may give rise." Ensign v. Batterson,
In this view of the matter the "equity of redemption" is regarded as the land, and its owner as the owner of the land, for most purposes; while the "estate in fee" of the mortgagee is, except for a limited purpose, regarded as personal estate and mere security. Waterbury Savings Bank v.Lawler,
As between mortgagor and mortgagee, however, it is the law of this State that the latter is regarded as having the legal title to the land; 2 Sw. Dig. (1st ed.) p. 166; Wakeman
v. Banks,
It is upon this fact — that by our law the mortgagee is owner of the land for certain purposes — that the plaintiff in the present case bases her right to the severed fixture. She says that it was hers while it was attached to the land, and that she did not lose her title to it by severance. Now it is true, with regard to fixtures which the owner in fee alone has the right to sever, that they belong to him when severed. The severance, although it changes the legal character of the thing from realty to personality, does not change the ownership. The ownership of severed fixtures is one of the incidents of such an ownership of realty, and in case of a wrongful severance and removal, such owner can follow the fixture and reclaim it, or recover damages for its loss, by the ordinary remedies given by law to the owner of personal property. Riley v. Boston Water Power Co., 11 Cush. 11; Moody v. Whitney,
In most, perhaps in all, of the other New England States, and in some others, the courts have held in effect that the mortgagee out of possession is owner of the severed chattel, and may reclaim it, or recover for its loss, from a purchaser from the mortgagor in possession, when the purchase was made under circumstances like those in the case at bar.Mosher v. Vehue,
In our own State, in Cooper v. Davis,
The plaintiff claims, in effect, that Cooper v. Davis should be overruled, because the doctrine of that case is (1) inconsistent with the view held in this State that a mortgage in fee conveys an estate in fee, and (2) it operates harshly and even unjustly against the mortgagee.
As to the claimed inconsistency, that is perhaps true, but it is at most a technical rather than a real one, and our law relating to mortgages is full of such inconsistencies. The doctrine that severed and removed fixtures belong to the mortgagor rather than to the mortgagee, is no more inconsistent with our theory of the estates of each, than is our doctrine that dower and most of the other incidents of legal estates attach to the estate of the mortgagor and not to that of the mortgagee.
With regard to the other claim of the plaintiff, it may be true that the rule adopted in Cooper v. Davis operates harshly at times against the mortgagee; but the question is whether the opposite rule would not operate still more harshly and unjustly as against the mortgagor in possession, and purchasers from him. The real interest of the mortgagee in the land is measured by the amount of his debt and not by his deed. If the severance of a fixture does not in fact diminish his security, if after it is severed, as before, his security is ample, there exists no good reason why he should be held to be the owner of the severed fixture. He can prevent by injunction waste that would really diminish his security; he can take possession of the land at once or obtain it by the aid of a court of law, and can hold it till his debt is paid. In addition to this he is protected by a criminal statute against waste done with intent to defraud him, or with intent to lessen the value of the property. General Statutes, § 1445. The evils and inconveniences which the plaintiff claims inevitably follow from the adoption of the rule applied in Cooper v. Davis, have not heretofore been seriously felt in this State, nor do we think they will be in the future.
On the other hand, the adoption of the opposite rule would *471 work serious inconvenience and annoyance to mortgagors in possession, and those dealing with them. It would in effect make the mortgagor in possession liable to an action at law for waste, while under our law heretofore he has not been regarded as liable at law for waste, 1 Sw. Dig. (1st ed.) p. 166; and it would limit very materially the power, hitherto exercised by mortgagors in possession, of dealing with the land as their own, in reference to removal of fixtures and the commission of acts of technical waste.
This view of the matter is very well expressed in the opinion in the New Jersey case of Kircher v. Schalk, supra, p. 339, as follows: "Mortgagors in possession of estates subject to mortgages past due, are constantly, for purposes of repair or profit, detaching and removing buildings, fixtures, fences, trees, and other similar articles, without intending to impair, or, in fact, impairing the substantial rights of the mortgagees. If, for every removal, the occupants and those into whose possession the detached articles come, are liable to trover or replevin, at the instance of parties whose real rights have not been infringed, the privileges of landowners are less than they are generally esteemed, and less than they need be for purposes of justice."
On the whole we are of the opinion that the rule adopted in Cooper v. Davis is, in view of our doctrine as to mortgages, founded in good sense and upon solid reasons, and should be applied in cases like the one at bar.
It may be that the mortgagee could recover damages for the intentional removal of fixtures whereby the value of the security is impaired to his detriment, but that question is not before us here and is not decided.
There is no error in the judgment complained of.
In this opinion the other judges concurred.