Hapgood v. Blood , 77 Mass. 400 ( 1858 )

Dewey, J.

The discharge in insolvency obtained by the defendant, although subsequent to the present cause of action, cannot avail the defendant, as the case is not embraced in the provisions of the St. of 1838, c. 163, § 7, by which the insolvent debtor is by force of his discharge to be exempted from any suit “ for or on account of any goods or chattels wrongfully obtained, taken or withheld by the debtor.” Such demands “may be proved and allowed as debts to the amount of the worth of the property thus taken.” § 3. These provisions are clearly limited to demands for personal property wrongfully taken ; and do not include a demand for a trespass qua/re clausum fregit, where damages are claimed for cutting and carrying away wood and timber trees, part of the real estate trespassed upon, and which only became personal property by the very trespass itself. The plaintiff might perhaps, at his election, have waived all claim for damages to the soil, and asked an allowance for the wood and timber after it was severed; and had it been thus allowed and proved, it would have been barred. But the plaintiff was not obliged to do so, nor required to present a claim for a portion of his damages for an illegal entry upon land, and injury to his freehold. The trespass upon the land of the plaintiff was the substantive cause of action; Eames v. Prentice, 8 Cush. 337; and the value of the wood and timber taken was merely part of the damages, and was not barred by the discharge.

This makes it necessary to consider the further objection taken to the right of the plaintiff to maintain this action. The precise relations of a mortgagee and mortgagor as to their respective rights in the land mortgaged have been the subject of frequent judicial inquiry, which has resulted in different views by different judicial tribunals. The settled doctrine of this court, which has the concurrence of the supreme courts of Maine and New Hampshire, is, that a mortgagee, after condition broken, may bring an action of trespass quare clausum fregit, where the alleged trespass is the cutting down and carrying away, without license from the mortgagee, express or implied, standing wood and timber, although there has been no formal entry for foreclosure by the mortgagee. This was so directly held in Page v. Robinson, 10 Cush. 102, and in two previous unreported decisions there cited. The alleged injuries in such a case are injuries to the freehold rather than to the possession. But all cutting of wood and timber by a mortgagor in possession, occupying by the permission of the mortgagee, is not to be deemed a trespass. Nor will an action of trespass lie by the mortgagee against the mortgagor for the occupation and use of the premises for the purposes of ordinary husbandry. The mere ordinary use of a wood lot, in the manner usually practised by the owner of a farm for supplying his own fires, may be justified, in the absence of any express notice forbidding the same. The well known and existing usages as to the mode of carrying on a farm to which a wood lot is attached, both as to the cutting of suitable wood for fires, and of timber for repairing fences, are not to be overlooked, and they may furnish sufficient justification for such acts. This was assumed and distinctly stated in the case of Page v. Robinson, 10 Cush. 102. As was correctly held in Smith v. Moore, 11 N. H. 62, “ the mortgagee cannot treat the mortgagor as a trespasser if, under the circumstances of the case, an assent to the act of the mortgagor may be fairly presumed by a jury.” The continued possession of the premises by the mortgagor is in that case permissive, and may extend to the .use of the wood, as well as the land. Upon this point the ruling was erroneous, and the case must be submitted to the jury under instructions to the effect above stated. The evidence of an express license from the original mortgagee was of course no justification for acts of cutting wood long after he had conveyed his interest to an assignee of the mortgage ; and is not further urged in the defence. The fact that there was another wood lot, not embraced in the mortgage, from which the necessary fire wood might have been obtained, is not an answer to the defence of an implied license to cut wood on the land mortgaged, if the jury find that such cutting firewood for family use was in the ordinary course of carrying on the farm, as had been theretofore practised, and from all the circumstances of the case they can fairly presume the implied assent of the mortgagee thereto. Exceptions sustained.