Pettengill v. Evans

5 N.H. 54 | Superior Court of New Hampshire | 1829

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The question is whether the replication ■iwiiiiSf-pHse is a good answer to the plea ? The substance of the plea is, that the plaintiff, by deed, on the 1st March, 1822, conveyed the locus in quo to one Calef, by whose command the defendants entered and di&the acts, of which, the plaintiff complains. To thig.i£:|s:re? plied that Oalef, on the same 1st day of March, re-conveyed the same premises to the plaintiff, ⅞⅛⅜⅛.and in mortgage ; and that after the acts, of which the plaintiff complains, and before the commencement of this suit, the plaintiff entered and took possession of the premises.

As Calef remained in possession after the mortgage was made, he must have been there either as tenant at will, or as a trespasser. We are inclined to think that the plaintiff had a right to view his possession in either point of light, and to treat him accordingly.

Considered as a tenant at will, the acts done by the command of Calef were of such a nature as to amount in law to a determination of such a tenancy, and to make him and his servants trespassers. 1 Chitty’s Pl. 179; 3 Johns. 468, Tobey v. Webster.

And even if the possession of Calef is to be considered as a trespass and amounted to an actual disseizin of the plaintiff, yet after the entry of the plaintiff, the law, by a kind of jus post Uminii, supposes the freehold all along to have continued in him, and he may. now maintain trespass. 1 Chitty’s Pl. 177.

The law seems to us to be clear, that the mill, by being erected, upon the mortgaged premises and-amiexed to the freehold, became the property of the plaintiff, and the mortgagor had no right to remove it, nor any of its appurtenances. The old rule with respect to the removal of things annexed to the freehold by tenants, has in modern times been much relaxed in certain cases. Woodfall’s Landlord and Tenant, 217—232; 2 B. & B. 54, Buckland v. Butterfield ; 2 East, 88, Penton v. Robert; 3 ditto, 88, Elwes v. Maw.

But there seems to be no reason, why the strict rule of former times should not be now applied as between a mortgagor.; and a mortgagee. For the mortgagor has only to redeem in order to have the benefit of all buildings by him erected upon the land. And if the land be not worth redeeming, the mortgagor ought not to be permitted to lessen itsNalue by removing any buildings he may have erected.

We are therefore of opinion that there must be

Judgment for the plaintiff.