Holbrook v. Green , 98 Me. 171 ( 1903 )

Emery, J.

There was evidence from which the jury might lawfully have found the following facts.

I. The plaintiff, Mrs. Holbrook, held a duly recorded mortgage given by one Nelson on his farm. In January, 1901, there were interest, taxes and insurance remaining unpaid. The plaintiff, in reply to his application, wrote Nelson that she was willing he should cut fifteen or twenty thousand feet of lumber from the mortgaged land “to pay interest, taxes, insurance etc.” This was the only permission ever given. Nelson cut some lumber but instead of applying it to the payment of interest, taxes or insurance, he turned it over to Mr. Greene, the defendant, in part payment of a debt due him, and the plaintiff had to pay the taxes and insurance out of her own funds and had to forego the interest on the mortgage debt. The defendant converted the lumber to his own use.

The mortgage being duly recorded, all persons dealing with the mortgagor, Nelson, were affected with notice of the plaintiff’s title as mortgagee and must be held to have known that Nelson could not lawfully, as against the mortgagee, cut and sell lumber from the mortgaged premises without some special authority therefor from her. Such persons, therefore, were bound to inquire into the extent of the mortgagor’s authority, and if it was for a special limited purpose as in this case, they were bound to limit their dealings accordingly. Under the limited authority given in this case the defendant gained no title to the lumber by taking it in payment of his claim against Nelson,, the mortgagor, and hence became liable to the plain.tiff for its value.

II. About May 1, 1901, Nelson, the mortgagor, moved off the premises into another town and left them unoccupied. He practically abandoned them and all intention of redeeming them from the mortgage. On the 28th day of the following June the plaintiff, the mortgagee, having begun proceedings by publication for foreclosure, entered on the premises with a witness for the purpose of taking possession of them under the mortgage.

She posted a written notice of such taking possession, with the date, on the door of the dwelling-house. She did not herself move on the premises nor put any tenant on them, but she arranged with the adjoining neighbor to look after them for her. Nelson, the mortgagor, had left some furniture and farming implements on the place, but the jury could lawfully have found that nevertheless he had abandoned the place to the mortgagee.

Afterward the defendant, sometime in July, converted the grass on the premises to his own use claiming to have authority to do so from Nelson. Nelson having abandoned the premises and the plaintiff having taken possession, he could give no title to the growing grass and the defendant acquired no title from him. The defendant claims, however, that the plaintiff could not acquire possession as against the mortgagor or his assigns without giving him or them personal notice of her entry for that purpose, which she did not do. He also claims that her entry was fruitless as against the mortgagor and his assigns, because she did not retain such an open, visible, actual possession as would suffice to make a title by disseisin of the record owner. Neither of these claims can be sustained. It is not necessary for a mortgagee to give personal notice of his entry to an absent mortgagee who has abandoned the premises; or to his assigns out of possession; nor, having entered and taken possession, is it necessary for him to regard himself as a disseisor and to fortify his possession to that extent. He is not a disseisor, but is holding possession under his legal title and may await acts of disseisin by others before further asserting his title. The only right left to the mortgagor or his assigns is the right to redeem from the mortgage.

III. The defendant complains that the jury appraised the value of the lumber and hay too high. The appraisal does seem' to us rather high, and is higher than we would have made, but the jury is the better, as well as the legal, tribunal for such questions of value; and as we see no reason to doubt that the jury’s appraisal is their honest, deliberate judgment, we must decline to substitute our judgment for theirs.

Motion overruled.