Hoskin v. Woodward

The opinion of the court was delivered, by Lowrie, C. J. The mortgage of this machine-shop of course included all the fixed elements of it that gave it its peculiar character as a machine-shop, and it is quite plain that the lathe was one of them, and that the sale and removal of it was a violation of the rights of the mortgagee. The purchaser had both actual and constructive knowledge of the mortgage, and the morality of the law calls such purchase a fraud upon lien-creditors, and void as against them. Of course, therefore, the mortgagor had a right to follow7 the removed property, and assert his rights over it. He may even treat it as personalty as against the wrongdoer, for the wrongful act cannot be alleged by the wrongdoer as a means of shelter for himself. Even without knowledge of the mortgage, it is hard to see how a purchaser could he relieved from this responsibility; for all purchasers, hirers, and renters are bound to ascertain, or take the risk of assuming the title of their vendors and lessors. But may not a mortgagor sell in the usual way the lumber, firewood, coal, ore, fruit, or grain found or growing on the land, without violating the rights of the mortgagee? Yes, he may, until the mortgagor stops him by ejectment or estrepement, for those things are usually intended for consumption and sale, and the sale of them is the usual means of raising the money to pay the mortgage. But in the case of a factory, or other building, it is by the use of it as it is, and not by its consumption or its sale by piecemeal, that all its profits are to be derived. We think the case was properly decided. Judgment affirmed.