Vanderslice v. Knapp

The opinion of the court was delivered by Yalentine, J.: statement of the case. This was an action of replevin, brought by Yanderslice as receiver, etc., against Reuben Knapp, A. J. Selover, and John D. Hier, for the recovery of certain mill-fixtures. The petition alleges in substance as follows: Jonathan Rigby owned certain land, on which was a grist-mill, and in which mill were said fixtures. Rigby, on 15th September 1874, mortgaged said property to the St. Joseph & Kansas Loan and Building Company, to — 648 — secure the sum of $5,000. Whether said mortgage is yet due, and whether the property is worth $5,000, or $500,000, or any other amount, is not stated in the petition. Afterward, Rigby, for the purpose of defrauding said loan and building company, severed said mill-fixtures from the mill, and sold and delivered them to the defendants, Knapp, Selover, and Hier, who purchased and received the same for a like purpose. Afterward said company commenced an action against Rigby, Selover, and others. What kind of an action this was, and for what purpose it was commenced, is not stated in the petition. But in such action the plaintiff, Wanderslice, was appointed a receiver, “and as such receiver was duly authorized and empowered to bring this present action, and all other proper actions, to recover possession of” said mill-fixtures. Afterward he brought this action of replevin against Knapp, Selover, and Hier, to recover said mill-fixtures. He alleged the foregoing facts in his petition,' and also alleged as a.conclusion therefrom that he had “a special ownership and interest in” said mill-fixtures, and that he was “entitled to the immediate possession thereof.” He also alleged that the defendants then had the possession of the said mill-fixtures, and that they wrongfully and unlawfully detained the same from him, although he had demanded the same from them, and he prayed for a judgment for the recovery of said property. The defendants demurred to this petition, on the grounds - “first, that plaintiff has not legal capacity to sue; second, that said petition does not state facts sufficient to constitute a cause of action.” The court below sustained this demurrer, and the plaintiff now brings the case to this court for review. 1. Removal of fixtures by mortgagor of land; title after severance. 2. Rights of mortgagor of real property; remedy mortgagee. The judgment of the court below must be affirmed. Rigby was the owner of said land and mill-fixtures, both before and after~said mortgage became due, (if it has become due, but it has not been shown or stated whether or not it has become due,) until he sold the fixtures to the defendants, when the fixtures probably became the property of the defendants. But — 649 — at no time did the land, or the mill, or the fixtures, become the property of the mortgagee, or any person holding or claiming under the mortgagee. (Chick v. Willetts, 2 Kas. 385, 391.) While Rigby was the owner of the property he could lawfully sever the fixtures from the mill, and sell them to the defendants, or to any other person, without their becoming the property of the mortgagee, or any person claiming, under the mortgagee. (Clark v. Reyburn, 1 Kas. 281; Cooper v. Davis, 15 Conn. 556.) A mortgagee is a mere lien-holder; and, whether he shall ever own any part of the mortgaged property, or not, depends upon whether the mortgage shall ever be foreclosed in the district court, and whether he shall be the successful bidder at the sheriff’s sale of the property. Any other person has just the sume right to bid on the property and to purchase it, that he has. A mortgagor of real estate has the right to possession of the mort- . gaged property, and the right to sever and re- ° _ A J ° move the timber, wood, sand, earth, coal, stone, or anything else, therefrom, and to sell the same, unless it unreasonably impairs the mortgage security; and when it impairs the mortgage security the remedy of the mortgagee is not at law, but in equity; not in replevin to recover the property severed from the realty, but generally injunction to restrain the commission of waste upon the realty. The facts of this case however would not sustain any action, either at law or in equity; for it does not appear from the petition that the mortgage security has been unreasonably impaired. The mortgage-debt appears to be $5,000, and interest; but the mortgaged property, without said fixtures, may be worth ten or twenty times that amount. The judgment of the court below will be affirmed. All the Justices concurring.