Place v. Sawtell

8 N.E. 343, 142 Mass. 477, 1886 Mass. LEXIS 354

• Court: Massachusetts Supreme Judicial Court
• Decided: October 21, 1886
• Status: Published

Opinion

By the Court.

It was held in Butler v. Page, 7 Met. 40, that, where a mortgagee in possession sold buildings standing upon the mortgaged premises to a purchaser, who removed them, the administrator of the mortgagor could not maintain trover against such purchaser to recover the value of the buildings or the materials. The decision is put upon the ground that, at the time of the mortgagor’s decease, the fee of the mortgaged premises, as between him and his mortgagees, was in the latter, and the removal of these buildings vested no property in the materials in the representative of the mortgagor, and therefore an action of trover could not be maintained. This case is decisive of the case at bar.

The ruling of the Superior Court, that the plaintiffs could maintain their second count, was therefore erroneous.

jExceptions sustained.