Judkins v. Woodman

3 L.R.A. 607, 17 A. 298, 81 Me. 351, 1889 Me. LEXIS 36

• Court: Supreme Judicial Court of Maine
• Decided: February 26, 1889
• Status: Published

Opinion

Wanton, J.

The question is whether, if the mortgagor of a farm, while remaining in possession, cuts a reasonable quantity of wood for his own use as fuel, he can, on leaving the farm, remove the wood for use elsewhere. His right to cut the wood is not denied. His right to remove it for use elsewhere is denied. Assuming that the wood was lawfully cut, being reasonable in amount, and in cutting it that no rule of good husbandry was violated, we think that upon leaving the farm the mortgagor would have a right to take the wood with him. When severed from the soil, if rightfully and lawfully severed, the wood would become a mere chattel, and would no more belong to the mortgagee than hay or grain or fruit harvested from the farm. This rule does not apply to wood or timber unlawfully cut; it applies only to wood lawfully cut for fuel for family use. Such in effect was the ruling of the judge who tried the case, and we think the ruling was correct.

Objection was made to the admission in evidence of a paper said to be a schedule of articles claimed by the mortgagees, and on which the wood in question does not appear. It was objected to on the ground of irrelevancy. We think it was admissible. It was prepared by the defendant, and was admissible upon the same ground that any declaration of a party, written or oral, is admissible. Its probative force, if any, was for the jury.

Exceptions overruled.

Peters, C. J., Daneorth, Virgin, Libbey and Poster, JJ., .concurred.