Smith v. Porter , 35 Me. 287 ( 1853 )

Rice, J.

— By purchasing the note of Betsey Tilton, with the mortgage of the oxen by which that note was secured, the defendant was subrogated to her rights as mortgagee. This gave him the right to have possession of the oxen, but not to sell them, before the mortgage had been legally foreclosed. Taking possession under his mortgage would not render him liable in this action, for one who takes possession under a fair claim of right is not-chargeable as executor deson tort. Femings v. Garratt 1 Esp. 335.

Nor was the subsequent purchase of the legal and equitable interest that James Kimball’s estate had in the oxen, of Betsey Kimball, the widow of said James, for an apparently full consideration, such an intermeddling with the estate of the deceased Kimball, as would render him liable. The widow, by the sale of the oxen to the defendant, may have rendered herself chargeable, as executor in her own wrong, but the party, who, even knowingly, receives goods from an executor de son tort and deals with them as his own, does not himself thereby become an executor de son tort. 9 Ad. & El. 365. There is, however, nothing in this case, to show that the defendant knew that the party of whom he purchased acted without legal authority. A nonsuit is to be entered.

Shepley, C. J., and Wells, Howard and Hathaway, J. J., concurred.