Gill v. Weston

Mr. Justice Sterrett delivered the opinion of the Court October 5th, 1885. This contention involves the right of plaintiffs below to maintain trover and conversion for-an engine and belt removed from the leasehold premises by Curtis, the lessee, and subsequently appropriated by defendant below. The right to maintain the action is claimed by them as an incident of the leasehold mortgage which has been considered in writ of error to the judgment in ejectment between the same parties, No. 73 'of this' term. (Preceding case.) Some of the facts are common to both cases, and, so far as they have been stated in that case, it is unnecessary to repeat them here. In November, 1882, Curtis made a mortgage to Weston Brothers, plaintiffs below, of the leasehold, “together with all machinery and fixtures thereon,” including, as they claim, the engine and belt in controversy. Curtis testified that the engine and belt were on the property-when the mortgage was executed. There was also evidence tending to show that the articles in controversy had been removed from the leasehold premises and were subsequently taken possession of by defendant below, who refused to surrender them. The learned judge charged that if the property was embraced in the mortgage the mortgagees had the right to follow it whereevei8 they found it, notwithstanding it liad been removed from the leasehold by permission of the lessee; that the latter had no right, as against them, to permit the property to be removed to the Story & Adams lease, nor had Story & Adams any right to permit defendant below to take it thence; that Curtis, having mortgaged the property in question to plaintiffs below, and the mortgage having been duly recorded, they had a right to follow the property, and under the undisputed evidence in the case they might maintain the action against Gill [317] for taking the same and refusing to surrender it. We discover nothing erroneous in these instructions. There was no error in admitting the evidence complained of in the first and second specifications, nor in refusing to affirm the proposition covered by the fourth specification. The questions presented in these assignments of error have been considered in the case above referred to and require no further notice. The court was right in admitting the evidence complained of in the third specification. The general description in the mortgage was sufficient to embrace the property in controversy, and it was certainly not irrelevant to prove that it was actually on the leasehold premises when the mortgage was executed and was embraced therein. For similar reasons the proposition recited in the fifth specification was rightly refused. There was no error in charging as complained of in the sixth and seventh specifications. The Act of April 27th, 1855, gives to a leasehold mortgage, executed and recorded according to its provisions, the same force and effect as a mortgage of real estate, and gives the mortgagee like remedies for protection and enforcement of his security. Neither the mortgagor nor any one coming into possession under him as purchaser at sheriff’s sale of his interest, subject to the mortgage, has a right to remove the machinery or fixtures, covered by the mortgage, to the detriment of the mortgagee. The law regards such removal as a fraud upon the latter, and permits him to follow the property and assert his right thereto as against the wrong-doer: Hoskin v. Woodward, 9 Wr., 42; Witmer’s Appeal, Id., 455; and there appears to be no reason why he may not do this, notwithstanding the mortgage is not due, unless the mortgagor has provided against it by reserving to himself the possession and control of the mortgaged property until default is made in payment of the mortgage debt: Martin v. Jackson, 3 Casey, 504; Tryon v. Munson, 27 P. F. S., 250, 264. A special property and a right to immediate possession is all that is necessary to maintain trover. It matters not that the Act of 1855 was passed before petroleum was discovered. It is a mineral substance obtained from the earth by a process of mining, and lands from which it is obtained may with propriety be called mining lands. The Act in express terms makes it lawful for the lessee of a term of years of mining lands to mortgage the same. Judgment affirmed.