102 Me. 251 | Me. | 1906
This was an action of trespass commenced by writ declaring under three counts, the first alleging the detaining, with force and arms, by the defendant, of certain goods and chattels, consisting of greenhouse frames, plants, loam and compost, property of the plaintiff, from his possession, the second the conversion of the goods and chattels described in the first count and the third, the forcible taking and carrying away of the same property.
After the evidence of both the plaintiff and defendant was presented the presiding Justice, on motion of the defendant’s counsel, directed the jury to render a verdict for the defendant. To this instruction the plaintiff excepted, and upon his exceptions the case is before the Law Court.
At a jury trial the presiding Justice is authorized to direct a verdict for either party when a contrary verdict could not be sustained by the evidence, Bank v. Sargent, 85 Maine, 349; Bennett v. Talbot, 90 Maine, 229; Coleman v. Lord, 96 Maine, 192; Thompson v. Missouri Pacific R. R. Co., 51 Neb. 527; Stearn v. Frommer, 30 N. Y. Supp. 1067; or if the plaintiff’s evidence, when taken to be true, is not sufficient to make out a prima facie case, the court may properly direct a verdict for the defendant. Heath v. Jaquith, 68 Maine, 433; Co-operative Soc. v. Thorpe, 91 Maine, 64; Jewell v. Gagne, 82 Maine, 430. But when the case is doubtful, and when different conclusions might be drawn from the evidence by different minds, the facts should be submitted to the jury. Luhrs v. Brooklyn Heights R. R. Co., 42 N. Y. St. 606.
The plaintiff contends that he had the title and right of possession to all the property specified in the writ, and that the defendant forcibly took and withheld it from him; and the defendant claims that a portion, at least, of the property was his as part of the realty, he having acquired title thereto by accession, which alone he withheld from the defendant at the time of the alleged trespass.
There are four classes of property which are the subject matter of this action. The material which had entered into the construe
It appears that in September, 1905, the plaintiff purchased from James Fyles, Sr., a greenhouse with its contents, consisting of potted plants, and plants maturely grown but not servered from the soil, and loam prepared for. gardening purposes. The greenhouse had been removed by the vendor from its original location and placed on posts upon land belonging to his son, James G. Fyles, with his consent, and had attached it to the barn, through which he cut a door and in the cellar of which he had set up a boiler and connected pipes into the greenhouse for heating the same, and subsequently he and his son carried on business as florists, using the greenhouse in connection therewith. The land on which this structure was erected had been previously mortgaged by James G. Fyles to the defendant. The mortgage was subsequently foreclosed aud the equity purchased by the defendant, and James Fyles and son became his tenants at will until their tenancy was terminated by notice immediately before the date of the alleged trespass. The plaintiff had already removed the plants which had been in the greenhouse, and had taken down the structure. He was in the act of removing the glass frames when the defendant ordered him not to remove his property. The plaintiff testifies that he was ordered to remove nothing from the place, aud the defendant testifies, in effect, that he forbade the removal of anything which was a part of the reality, and that his interference was confined to the class of property which the plaintiff was at the time removing. The plaintiff’s theory is somewhat
Where a structure is affixed to the premises of another by a temporary occupant thereof, or by a licensee, it is deemed temporary in its purpose and not part of the realty. Berwick v. Fletcher, 41 Mich. 625; O’Donnell v. Burroughs, 55 Minn. 91; Meigs’s Appeal, 62 Pa. St. 28; Andrews v. Auditor, 28 Gratt. 115.
Annexations with the consent of the owner or mortgagee of the realty, made by a bare licensee, are presumed to be removable ■ and to remain the property of the one annexing, in the absence of facts indicating a contrary intention, even against a subsequent purchaser without notice. Nelson v. Howison, 122 Ala. 573; Fisher et al. v. Johnson et al., 106 Ia. 181; Sager v. Eckert, 3 Ill. App. 412; Walton v. Wray, 54 Ia. 531; also by agreement between the owner of personal properly and the owner or mortgagee of the realty, personal property may retain its status after annexation. Smith v. Odom, 63 Ga. 499; Marshall v. Bachelder, 47 Kan. 442; Handforth v. Jackson, 150 Mass. 149; Peaks v. Hutchinson, 96 Maine, 530; Russell v. Richards, 10 Maine, 429; Tapley v. Smith, 18 Maine, 12; Hilborne v. Brown et al., 12 Maine, 162; Salley v. Robinson, 96 Maine, 474; Readfield Telephone, etc. Co. v. Cyr, 95
As to what are fixtures, substantially the same rules prevail between grantors and grantees as between mortgagors and mortgagees, but different rules apply in relation to landlords and tenants from considerations of public policy and because of the temporary nature of the tenure. Maples v. Millon, 31 Conn. 598; Arnold v. Crowder, 81 Ill. 56; Bishop v. Bishop, 11 N. Y. App. 123.
In some jurisdictions it is held that, even without their consent or agreement, the rights of prior mortgagees,- they having parted with nothing on the faith of the fixtures, are subject to those having rights therein. Broaddus v. Smith, 121 Ala. 335; 19 Cyc. 1051; but in others, including Maine, it is held that a mortgagor cannot, by any agreement with a third party, diminish the rights of a prior mortgagee. Ekstrom v. Hall, 90 Maine, 186; Wight v. Gray, 73 Maine, 297; Meagher v. Hayes, 152 Mass. 228; Thompson v. Vinton, 121 Mass. 139; Fiske v. Peoples Nat. Bank, 14 Cal. Apps. 21; Watertown Steam Engine Co. v. Davis, 5 Houst. 192; Fuller-Warren Co. v. Harter, 110 Wis. 80; Dame v. Dame, 38 N. H. 429; Tyson v. Post, 108 N. Y. 217; Jones on Mortgages, 429.
If the defendant's title to the realty had been acquired simply by his deed from James G. Fyles, by whose consent the greenhouse was erected, his rights would have been subject to the owner of the fixture, but as he was the mortgagee of the realty at the time the structure was erected, it became part of the mortgage security and by foreclosure he became the owner by accession, in accordance with the doctrine recognized in Ekstrom v. Hall, supra, unless his consent to its erection is shown. There seems to be no evidence of his consent, and no fact or circumstance from which any agreement on his part may be presumed that the greenhouse should remain personal property after annexation.
The status of the other classes of personal property described in the writ is to be determined by the more liberal rule which prevails between landlord and tenant. The plants’ in pots and fertilized loam remaining on the premises were not of- the nature of fixtures, but movable property which the florist had the same right to sell as was
Exceptions sustained.