Lull v. Matthews

The opinion of the court was delivered by Kellogg, J. It is very obvious, that whether the plaintiff was entitled to recover, upon the evidence detailed in the bill of exceptions, must depend upon the question whether the property in the wood, by virtue of the sale by Brooks, the plaintiff’s deputy, passed to and vested in the defendant; for if it did, then manifestly the plaintiff was entitled to recover, and the charge of the county court was correct. The sale of the wood was not upon execution; but if it had been, or if the sale were entitled to all the effect of a sale upon exe [326] cution, while it would pass to the purchaser all the right and interest of the debtor in the execution, or process, under which the sale was made, yet it would not conclude third persons, who were not parties to the process. This point was settled in the case of Griffith v. Fowler, 18 Vt. 390. It becomes important, then, to inquire whether Evans, the defendant in the process under which the sale was made, was in law the owner of the wood; for we take it to be clear, that the sheriff could not sell, and the purchaser could not acquire, any greater interest in the wood, than the execution debtor possessed. It is also well settled, that, after condition broken, the mortgagee becomes, at law, the absolute owner of the estate, and is entitled to the immediate possession; and that he can, from that time, charge the mortgagor, who becomes quasi tenant to the mortgagee, with the rents and profits. The only remedy of the mortgagor is in equity, by payment of the mortgage money. In the case under consideration it appears, that the wood, which is the subject of the present controversy, was cut by the mortgagor upon the mortgaged premises, after the decree of foreclosure was made and near the expiration of the time limited for the redemption of the premises, and that the wood remained upon the premises after the decree of foreclosure became absolute, and after the mortgagee had taken possession of the premises; and that the mortgagee, after taking possession, took and sold a par-t of this wood. Now it was held by this court in Morey v. McGuire, 4 Vt. 327, “that if the mortgagee, after condition broken, assign the mortgage and the mortgagor cut timber and leave it upon the premises until after the assignee takes possession, the mortgagor cannot maintain trover against the assignee for using the timber.” In this case the court say, “ that his, the mortgagor’s, possession, when he cut the timber, was a mere tenancy at will. And whether his right of redemption was foreclosed, or not, would make no difference in this respect. The legal rights of the parties must be decided at law ,• and it would seem rather remarkable, if the law would admit the tenant at will to cut the trees of his landlord, and then recover of his landlord for using those trees.” The decision in the case above cited proceeds upon the ground, that the mortgagor was a wrong doer in cutting the timber and [327] could acquire no title to it as against the mortgagee and his assignee. So, in the case at bar, Evans, the mortgagor, when he cut the wood, was a wrong doer, and acquired no title to it, as against the mortgagee. The case farther shows, that after the mortgagee took possession of the premises, he forbid the defendants taking away the wood. This, under the circumstances, was quite sufficient to justify the defendant’s subsequent refusal to take the wood. For we entertain no doubt, that, had the defendant attempted to remove the wood at any time after the purchase, upon application of the mortgagee the court of chancery, would, by injunction, have restrained the defendant from removing the same. Had the mortgagor redeemed the premises within the time limited by the decree, he would have acquired and perfected a valid title to the wood. But the premises were not redeemed. Upon the whole, we are satisfied that Evans acquired no title to the wood, as against Davis, the mortgagee, and consequently,- that the defendant acquired no title by the purchase at the sheriff’s sale and therefore was not liable for the purchase money. The charge of the court was therefore wrong, and the judgment of the court below must be reversed.