Smith v. Goodwin

Supreme Judicial Court of Maine

Smith v. Goodwin

2 Me. 173

CourtSupreme Judicial Court of Maine

DecidedNovember 15, 1822

StatusPublished

Cited by2 cases

This text of 2 Me. 173 (Smith v. Goodwin) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Goodwin, 2 Me. 173 (Me. 1822).

Pincite

Opinion

Mellen C. J.

delivered the opinion of the Court as follows.

This is an action of trespass by the assignee of a mortgagee, against a person claiming under the grantee of the mortgagor, for having taken away from the mprtgaged premises a dwelling» [175]*175house, which had been erected thereon by the mortgagor, after the conveyance in mortgage; and • which the defendant had purchased of such grantee. ,

In the argument two questions were made: — 1, whether the plaintiff had such a possession as entitled him to maintain an action of trespass : — 2, whether .the act complained of was in itself a trespass.

As to the first question, it is well settled that as between mortgagor and mortgagee, the legal estate is in the latter, and the possession of the. mortgagor is not adverse to the mortgagee, but in fact is his possession. See Blaney v. Bearce, ante, p. 132. and the cases there cited. On this principle the possession of the plaintiff, as assignee of the mortgage, was sufficient to entitle him to maintain the action against the defendant, provided the act done by him was inconsistent with the estate of the mortgagor, or his grantee.

This leads us to the second question; — and on this point we think there can be no doubt. The dwelling-house, which was sold to the defendant and by him removed, was a part of .the freehold which belonged to the mortgagee or his assignee. It was a fixture, attached to the land, and in legal contefnplation inseparable from it, though built by the mortgagor after the execution of the deed of mortgage. The case of Taylor v. Townsend, cited by the defendant’s counsel, is in two respects different from this. That was an action by the mortgagor against the assignee of the mortgagee ; and the trespass complained of was the taking down and removal of a barn and shed erected by him, and which, as the Court observed, were not fixtures, or so connected with the soil that they could not be removed without prejudice to it.

On legal principles we do not perceive any defence in the action, and a default must be entered, pursuant to the agreement .of the parties.

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Mellen C. J.

delivered the opinion of the Court as follows.

This is an action of trespass by the assignee of a mortgagee, against a person claiming under the grantee of the mortgagor, for having taken away from the mprtgaged premises a dwelling» [175]*175house, which had been erected thereon by the mortgagor, after the conveyance in mortgage; and • which the defendant had purchased of such grantee. ,

In the argument two questions were made: — 1, whether the plaintiff had such a possession as entitled him to maintain an action of trespass : — 2, whether .the act complained of was in itself a trespass.

As to the first question, it is well settled that as between mortgagor and mortgagee, the legal estate is in the latter, and the possession of the. mortgagor is not adverse to the mortgagee, but in fact is his possession. See Blaney v. Bearce, ante, p. 132. and the cases there cited. On this principle the possession of the plaintiff, as assignee of the mortgage, was sufficient to entitle him to maintain the action against the defendant, provided the act done by him was inconsistent with the estate of the mortgagor, or his grantee.

This leads us to the second question; — and on this point we think there can be no doubt. The dwelling-house, which was sold to the defendant and by him removed, was a part of .the freehold which belonged to the mortgagee or his assignee. It was a fixture, attached to the land, and in legal contefnplation inseparable from it, though built by the mortgagor after the execution of the deed of mortgage. The case of Taylor v. Townsend, cited by the defendant’s counsel, is in two respects different from this. That was an action by the mortgagor against the assignee of the mortgagee ; and the trespass complained of was the taking down and removal of a barn and shed erected by him, and which, as the Court observed, were not fixtures, or so connected with the soil that they could not be removed without prejudice to it.

On legal principles we do not perceive any defence in the action, and a default must be entered, pursuant to the agreement .of the parties.

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Bluebook (online)

2 Me. 173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-goodwin-me-1822.

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