Lynde v. Rowe , 94 Mass. 100 ( 1866 )

Hoar, J.

There can be no doubt that the several articles named in the plaintiff ’s bill, which were placed in the building before the assignee of the mortgage took possession, were fixtures which, as between mortgagor and mortgagee, became a part of the realty, and could not be sold or removed as personal property without the mortgagee’s consent. Winslow v. Merchants' Ins. Co. 4 Met. 306. Richardson v. Copeland, 6 Gray, 536. It appears that they were annexed to the freehold after the execution of the mortgage under which the plaintiff claims, by a copartnership of which the mortgagor was a member, who occupied the building as tenants of the mortgagor; and the defendants contend that the question whether they became a part of the freehold is to be settled according to the more liberal rule as between landlord and tenant.

But the doctrine is well settled, that, although the mortgagor is to be regarded as owner of the estate as to all other persons than the mortgagee, yet that he cannot create a tenancy after the execution of the mortgage, which will be valid against the mortgagee, unless the mortgagee chooses to recognize the tenant as such. The mortgagee may, if he chooses, disavow the tenancy, and enter and evict the tenant, who will not even be entiJed to emblements. Mayo v. Fletcher, 14 Pick. 525. 1 Wash-burn on Real Prop. 531.

The mortgagees did not enter upon the mortgaged estate until after the insolvency of Allen Rowe & Son, and that firm never became their tenants. When possession was taken under the mortgage, the right of the mortgagees and their assigns was to have the estate with all its appurtenances in the condition in which it then was, and the assignees in insolvency of Allen Rowe & Son took no greater right than the insolvents had. The fixtures put in by the defendants since they became tenants under the assignee of the mortgage stand on a different ground.

The plaintiff is therefore entitled to the injunction asked in the bill against the removal of the fixtures placed in the building by Allen Rowe & Son, and to an account and assessment of damages for the articles which were removed in violation of his right. The case is to be referred to a master to ascertain and assess the damages; and upon his report the plaintiff will be entitled to judgment for the sum thus ascertained, and for his costs.