Jewett v. Patridge , 12 Me. 243 ( 1835 )

Weston C. J.

.To sustain this action, it is incumbent upon the plaintiff to show, that when he caused the house in controversy to be attached, it was the personal property of Ichabod Patridge, his debtor. The jury have found that it was built by him, by the consent of his son, William Patridge. The land was the property of John Pitts. The father had formerly purchased it of him, but in March, 1822, had reconveyed his interest, finding himself unable to pay for it. But Pitts told WilHam, that he might keep possession of the let, until bo might wish to dispose of it, at a reasonable rent; and, 'drinking he wanted it for his father, told him he might put on whom ho pleased. William failing to pay the rent, Pills, in 1825 or 1833, gave them notice to quit the place, cr make some definite arrangement about it, or he should resort to legal measures to drive them oiF. No arrangement was then made, and in 18£C>, Pitt.? agreed to execute a conveyance to one Miller, who, however, failed to comply with the terms on his part; and thereupon Pilis, in November, 1827, conveyed the land to William and his brother Jeremiah, taking back a mortgage to secure the consideration, which remained unpaid at the time of the trial.

Pitts had notified them to quit the land, or make a definite arrangement. They remained, however, in possession; and in November, 1827, an arrangement was made, to his satisfaction. This should be regarded as an acceptance of the alternative proposed, the intervening attempt to sell to Miller, having failed. The preceding possession was thereby ratified and confirmed.

It is said that Pitts gave no consent to the erection of the house, and that when built, it became his property. And casos have been cited, to show that when one builds upon the land of another, without his consent, such building enures, as a part of the freehold, to the owner of the land. And as to any consent by William, it is insisted that, being a mere tenant at will, he could not assign over his possession to another. But Pitts did give William permission to put on whom he pleased, supposing that ho intended to put on his father. If he might bo put on, it could not be expected that he would live there without shelter ; and it is fairly to he implied from the permission, that when he went on he might provide something to cover him.

From the plaintiff’s testimony it appeared, that the frame was erected by the father, in the fall of 1826 or 1827; hut it must have been in 1826, — for in December of that year, tire father gave a bill of sale of the house frame and the boards lying by it, to William; and in "tbe same instrument, which was introduced by tbe defendant, stipulated to dig and stone the cellar. If the father built the house by the consent of the owner of the land, it is now well settled that it continued his personal property j and as such was liable to be taken by his creditors. Russell v. Richards & al. 1 Fairf. 429, and the cases there cited.

But assuming that Fitts never assented directly, or by fair impli- ,. cation, to the erection of the house ; after his conveyance in 1827, William Patridge was tenant in common with Jeremiah, in the land in possession, subject to the mortgage of Fitts, for the consideration. They thus became the owners of the land against all the world but him, and as against him they were entitled, while in possession, to the rents and profits without account. Suppose it to have been land, on which an available profit might arise from ground rents, shall a mortgagor in possession be precluded from turning it to account, by suffering others to make erections upon it ? And if made, why should the lien of the mortgagee at once attach upon them ? He may entitle himself to the rents by taking- possession, or he may interpose to determine the tenancy. With these rights and powers, he may be benefitted, but cannot be injured, if buildings placed upon the land by others, with the •consent of the mortgagor in possession, are held to be personal property. If the law were otherwise settled, a door might be opened to put property out of the reach of creditors, by collusion with the mortgagor or the mortgagee, or even without collusion. The most expensive erections, built with the consent of the mortgagor in possession, would be at once so placed, as not to be tangible by any course of proceedings, which any creditor could adopt, even though he furnished the funds to build them. He could have no remedy against the mortgagor, nor would he have any means of compelling him to redeem, either before or after the mortgagee had taken possession for condition broken. And having no right to redeem himself, he would be without any remedy, whereby to reach the property of his debtor, in the ordinary forms of law. The case before us, if the defence set up is sustained, is an illustration of the injurious effect of the principle contended for upon fair creditors. We have made these intimations, without however intending to decide upon the rights of a mortgagee in such cases.

' The jury have found that William Patridge has attempted to defraud the plaintiff and other creditors, by covering the property of their debtor, and that the defendant claiming under him, was privy to it, having purchased with full knowledge of the fraud, and yet we are called upon to give effect to these fraudulent practices, and to throw over them the mantle of legal protection, by suffering the defendant to invoke to his aid the title of Pitts, who has a mere lien upon the land, which he may never have occacasion to enforce. We forbear to give a definite opinion as to the claim of Pitts. lie is no party to this suit, nor can his rights be iu the slightest degree affected by our decision. The house will continue upon the land ; and if he has any lien upon it, it remains unimpaired. But we hold that William Patridge, having been in possession as tenant in common, and as such the owner, subject to the lien of Pitts, as mortgagee, and having consented that the house should be built and continued upon the land by Ichabod Patridge, as against William and all claiming under him, it is to he regarded as the personal property of Ichabod. If judgment is rendered against the defendant, when satisfied, he will have by operation of law a title derived from him, who holds lawfully under the true owner ; and when the land is paid for to Pitts, which the Patridges by their contract are bound to do, he may enjoy the property without further embarrassment.

The title, upon which the plaintiff relies, datos from the attachment in September, 1829. It is insisted that the action should have been brought by the officer, as there was evidence of a conversion by the defendant, before the plaintiff became the purchaser, under the execution. But the officer was not obliged to treat the defendant as a wrong doer. The property remained subject to the attachment, and virtually iu the custody of the law. The officer had a right to sell it upon the execution, and to pass the title to the plaintiff, the purchaser, notwithstanding the plaintiff and his sisters were in the house. And the title having vested in the plaintiff under the sale, he had a right of action for the subsequent conversion. Actual conversion being otherwise fully proved, the case did not require evidence of a demand and refusal.

We are of opinion that the instructions requested were properly withheld ; and we sustain the ruling and directions of the Judge at the trial.

Judgment on the verdict.