Hamlin v. Parsons

By the Cov/rt Berry, J. The mortgage upon which this action is founded covered lot six only, and the fact that the house situated on said lot when the mortgage was executed was subsequently removed to lot seven, wouldhaveno tendency to extend the lien of the mortgage to the latter lot; nor do we perceive how the judgment in this case could be made a lien upon lot seven ; nor with what propriety lot seven could be ordered to be sold in satisfaction of the mortgage debt. This view of the matter seems to be acquiesced in by the counsel for defendants in error in their brief. So far as the house was concerned it was a part of the property covered by the mortgage, and it contributed largely to the value of the security. As it was removed from lot six without the knowledge or consent of the mortgagee, and with the knowledge of all the parties claiming any rights adverse to those of the mortgagee, we see no reason why such mortgagee should not be permitted to follow the house, after having exhausted lot [111] six, and apply it if necessary, to the payment of the mortgage debt. Hutchins vs. King, 1 Wallace U. S., 53. This course would give the mortgagee the benefit of the security for which he contracted. Ordinarily, a building is a part of the realty to which it is attached, but an exception to this rule is admitted “ where there is an agreement, express or implied between the owner of the real estate, and the proprietor of materials and buildings, that when annexed to the realty they shall not become part of it, but shall still remain the property of the person annexing them.” Welles vs. Bannister, 4 Mass., 514; 5 Pick. 487; 8 id, 402, First Parish &c., vs. Jones, 8 Cushing, 190; Wood vs. Hewett, 8 Ad. & Ell., N. S. 919; Smith vs. Benson, 1 Hill, 178; see also Laflin vs. Griffith, 35 Barb. 58; Movers vs Wait, 3 Wend. 108; 2 Smith, L. C., 261; 1 id. 663. This doctrine is also recognizedJ>y our own statutes, ch. 68, sec. 6, page 498, Gen. St. An analogous exception to the general rule above referred to is also admitted as between landlord and tenant. It does not then necessarily follow that a building is a part of the realty to which it is attached, nor that the house in this case became a part of lot seven by the removal thereupon, and so escaped from the lien of the mortgage. If one person can by agreement, express or implied, be the owner of a dwelling house upon the land of another, a fortiori where a building part of A’s realty is removed therefrom by B and annexed to B’s land, or that of a third person privy thereto, all without A’s consent, it would seem that A would not be deprived of his property in the building, either by the severance or annexation. In the case of fixtures removed under similar circumstances, it has frequently been held that trover would lie. Ferard on Fixtures, 295 et seg. And it would make no difference, except as to the extent of A’s right, whether A was absolute owner of the premises from which the building was taken, or possessed [112] of a conditional estate therein, as. mortgagee or otherwise. Such rights as he had should not be taken away from him by robbery. ¥e see no reason why complete relief should not be afforded the mortgagee in this action. As lot six is to be first sold, if its proceeds satisfy the judgment, the house will not be sold at all. If, upon the sale, lot six prove insufficient, then the house will be called upon for the unsatisfied balance, or as much of it as it will pay. There is no unfairness in this. The facts in the case do not show that the questions arising as to the right of the mortgagee to a lien upon the house are complicated, by any such substantial alterations in the building as have sometimes been held to affect, and change the title to property altered from its original form, nor by any intervening rights of innocent third parties. In accordance with these views the judgment must be modified, by striking out that portion of it which adjudges a lien upon lot seven, and a sale thereof, and so as to confine the lien and sale to lot six and the house, with such other changes as may be necessary to conform the judgment to this modification.