Byrom v. Chapin

Wells, J. This case must be governed by the decision in Gooding v. Shea, 103 Mass. 360. The owner of the equity has no more right than a stranger to impair the security of the mortgagee by removal of buildings or fixtures, thereby causing substantial and permanent injury and depreciation to the mortgaged estate. The right of action in such case is based upon the plaintiff’s interest in the property ; and the damages are measured by the extent of injury to that property. Woodruff v. Halsey, 8 Pick. 333. Page v. Robinson, 10 Cush. 99. It does not depend upon, and the damages are not to be measured by, proof of insufficiency of the remaining security. The mortgagee is not obliged to accept what remains, as satisfaction pro tanto of his debt, at any valuation whatever. He is entitled to the full benefit of the entire mortgaged estate for the full payment of his entire debt. When such injury has been done, reasonable satisfaction fairly made in good faith to the first mortgagee will discharge the claim as to all other interests. [312] The receipt offered by the defendants in this case does not purport to be an acknowledgment of satisfaction for the injury done to the mortgaged premises. It is a receipt merely of $230, as the proceeds of certain articles sold, and purchased for use in another building. Assuming them to be the same, and all that were removed from the house covered by the mortgage, and the amount so received their full and fair value for the use designated, still it is their value only as articles of personal property detached from the building. That may be no measure of the injury occasioned to the building by their removal. The plaintiff offered to prove, not only that the articles so removed and sold were of much greater value in themselves than $230, but also that the injury to the building caused by their removal was much greater than the value of the articles so removed. This evidence was competent, not only upon the question of damages, in case of recovery by the "plaintiff, but also upon the question whether the injury had been settled and satisfied by the payment to the first mortgagee. The ruling excluding this evidence, as well as the ruling that the action could not be maintained, were erroneous, and there must accordingly be a New trial.