Jewett v. Whitney

May, J.

If the plaintiff can recover it must be under the first count in his writ, no acts of trespass being proved under the second. Upon an examination of the deeds in the case, we are satisfied that the plaintiff has established his title to the locus in quo, described in his first count, unless the defendant by virtue of his attachment in his suit against Sumner Stone, and his subsequent judgment, and levy has acquired a title which overrides it. Both parties claim under said Stone, who, at the time of the defendant’s attachment, was seized as mortgagor, and tenant in common with others of one undivided half, part of a certain tract of land situate in the town of Waterford, upon Crooked river, (so called,) upon which tract was a grist mill and water privilege, said mill with its appurtenances being the locus in quo. It appears that Stone derived his title to this, and one undivided fourth part of a certain saw mill, land, and water privilege, adjoining to the grist mill tract, by a deed from Moses Brown to him, dated February 7, 1835, to whom said Stone gave back on the same day a mortgage, to secure a part of the purchase money.

The defendant’s attachment bears date May 9th, 1836. The deed from Stone on which the plaintiff, through several intermediate conveyances, relies, was a deed of warranty, dated September 12, 1836, acknowledged the same day, and recorded two days afterwards. The levy relied on was made December 11, 1837, being within thirty days from the rendition of the judgment. It further appears that Brown, the mortgagee of Stone, by his deed of quit claim, dated September 13, 1836, released and conveyed all his interest in said premises to said Stone.

It is contended in defence that the defendant’s attachment, having’ been made before Stone had parted with his interest in the premises, and seasonably followed up by a levy upon his execution, gives him the better title. This, it is conceded, *249 depends upon the validity and effect of the attachment and levy. If the attachment or levy does not cover the locus in quo, or if that part of the levy which is upon the tract on which the grist mill stands is void, then the title of the defendant fails.

The first objection urged against the defendant’s title, is, that the tract of land, on which the grist mill stands, was not attached upon the defendant’s writ against Stone. The deed from Brown to Stone and the levy both describe the saw mill tract, which adjoins that of the grist mill, as a part of lot No. 6, in the 14th Range; and all the deeds, through which the plaintiff claims, describe both mills as situate upon the same lot. From these facts, uncontrolled by any other evidence in the case, we infer that the premises conveyed by Brown to Stone, and mortgaged back to Brown, were a part of said lot No. 6. By the return of the officer who made the attachment, it appears among other things, that he attached not only all the right in equity of redeeming the land and mills mortgaged to Moses Brown, but also all said Stone’s right, title, and interest in lot No. 6, in the 14th range in Waterford. There can be no doubt but that such an attachment authorized the defendant to levy his execution upon the mortgaged premises, in fee, provided the mortgage had been paid or satisfied, and the incumbrance created by it removed before the levy. Statute of 1821, chap. 60, sec. 1, re-enacted in the R. S., chap. 114, sec. 31; Pillsbury v. Smyth, 25 Maine R., 427. The deed of quit claim and release from Brown to Stone, made in September, 1836, operated to relieve the estate from the incumbrance created by the mortgage. We cannot doubt that such was the intention of the parties to the deed. This left the mortgaged premises in a condition to be levied upon, by the defendant, in fee, or to enure to the plaintiff by virtue of his deed, if no valid levy-should be made.

The second objection to the defendant’s title is more formidable. It is that the grist mill, which is the locus in quo, is not included in the estate set off upon the defendant’s exe *250 cution. It is urged, an,d not without reason, that the appraisers, by their language and from their description of the premises, manifestly intended to exclude from the levy, either the mill as personal property, or the mill and land on which it stood as a part of the realty; and that in either view the defendant took nothing by his levy, so- far as relates to the premises described in his first count.

It is true, that if the appraisers have excluded from the levy the mill and land in fee simple, then it can be effectual only to pass the residue of the tract. So, too, if they have reserved to the debtor a right to occupy the mill, then standing upon the premises, until its destruction, this being an interest in the realty, would amount to a fee, defeasible by the destruction of the mill, which, if valid,, would render any interference, on the part of the defendant, a trespass, while the mill should stand. Such a proceeding, however, would be unauthorized. In effect it would be to cut up a fee simple into parts at the pleasure of the creditor. This cannot be done, unless in some cases, where the statute authorizes an execution to be levied on the rents and profits of an estate. The present is not such a case. A levy, therefore, reserving such an occupation of a part of the premises set off, would be void in relation to the particular tract from which the reservation was made. So, too, “ a creditor cannot, by making a levy, change the character of his debtor’s estate, and -convert a part of it into personal property, by taking the land under the buddings, and leaving them as the personal estate, to be torn down or removed.” Grover v. Howard, 31 Maine R., 546. There is no evidence in this case tending to show that the grist mill standing upon the premises at the time of the levy, was not a part of the realty. On the contrary, (,all the deeds of conveyance recognize it as such, and the counsel on both sides have, in their arguments, so treated it. Therefore, if excluded as personal estate, the levy upon the tract on which it stands is void.

Our inquiry then is, does the levy exclude the grist mill or the mill and land on which it stands, in any of the pre *251 ceding modes. If the fact of exclusion is established, it may not be material to ascertain precisely in what mode.

A levy is a statute conveyance to which the- same rules of construction are to be applied as to a deed of conveyance. Waterhouse v. Gibson, 4 Greenl., 230, and there is no difference in their application and effect, whether applied to an exception, a reservation or a grant. Allen v. Scott, 21 Pick., 25 . The intention, as developed in the language of the conveyance, considered in connection with the state of facts existing at the time, is to control. Sanborn and al. v. Hoyt, 24 Maine R., 118. In a levy the language of the return is to be taken as the language of the parties.

In the case before us the levy was upon- several distinct and separate parcels of land, and that part of its language which is more immediately applicable to the present question, is as follows: “ Also one other tract of land situated in Waterford, in said county, and on Crooked river, so called, it being one undivided half of said tract, with one undivided half of a water privilege sufficient for a grist mill, exclusivo of the grist mill now standing on said promises.” Then follows a description of the tract by metes and bounds, and a valuation of “ the land and water privilege,” no mention being made of the mill in such valuation. The one undivided half is appraised at one hundred dollars. The omission to mention the mill in connection with the land and privilege in this appraisal, while in appraising the very next tract described in the same levy, which is one undivided fourth part of a certain tract of land, with an undivided fourth part of a saw mill standing thereon, the land, saw mill, and water privilege are all specifically mentioned, is a fact strongly indicative of an intention to exclude the grist mill. These two tracts, with the mills and water privileges connected therewith, were all the estate, parts of which were conveyed by Brown to Stone, February 7, 1835, as appears by his deed of that date. The consideration of that deed was $600. The valuation in the levy of the whole estate, so conveyed, if the grist mill was included in the levy, was but $275. May not *252 this difference in the value indicate that the grist mill standing on the premises was excluded? Besides, if we leave out of the levy the words “ exclusive of the grist mill now standing on said premises,” such, in other respects, is the almost verbatim similarity between the two descriptions in the deed and the levy, that we are led to infer that the appraisers must have had the description in the deed before them to copy from when they made the levy. If such was the fact, then the insertion of the words of exclusion in the levy shows clearly an intention to dimmish the estate which was conveyed to Stone by the deed; and if the appraisers had not such description before them, no satisfactory reason has been assigned in the defence for using these excluding words in the levy, and none can be assigned,, except that they were used for the purpose of excluding the mill, either with or without an interest in the land, from the operation of the levy. Unless such was the intention, no effect whatever can be given to the words.

In the case of Howard v. Wadsworth and al., 3 Greenl., 471, there was a conveyance by deed of one undivided half of a mill site, with the falls and privileges, “ exclusive of the gristmill now on said falls, with the right of maintaining the same.” These words of exclusion in the deed were held to be a reservation- securing to the grantor the mill and the right of maintaining the same so long as it should stand on the premises. The words, “ with the right of maintaining the same,” do not appear to have been regarded by the court as having any influence in determining the fact of the exclusion of the mill,, but simply as tending to show the nature and extent of the interest intended to be reserved. No distinction, therefore, is apparent between the case cited and the one at bar, so far as relates to the construction touching the fact of exclusion. In view, therefore, of this authority, and the considerations before stated, we are satisfied that, the grist mill standing on the premises at the time of the levy, either with or without an interest in the land, (and as we have before said, so far as this case is concerned, it matters not which,) *253 was in fact intended to be excluded from the levy, so that tbe defendant, by means of it, acquired no title to the mill or the land on which it stands.

It is suggested in defence, that the word exclusive instead of inclusive was used in making the levy by mistake. If this be so, the court have no power, either at law, or in equity, to correct it. Linscott v. Fernald and al., 5 Greenl., 496; Lumbert v. Hill and al., 41 Maine R., 475. The other objectios urged against the validity of the defendant’s levy need not be considered.

It is next objected by the learned counsel in defence that, under the circumstances of this case, title in the plaintiff is not alone sufficient to maintain the action. It is said the plaintiff was not in actual possession when the acts of trespass complained of were committed. It appears that he was a tenant in common with others, and his cotenamts were in the actual occupancy of the mill, accounting to him for his share of the profits. It does not appear that they were lessees. At most they were but the servants of the plaintiff, carrying on, upon shares, his portion of the estate. Their possession was his possession. Hobson testifies that Lebroke,. the plaintiff and himself, who were the then owners of the mill, had been in possession, occupying jointly until the defendant took possession, on the 8th or 10th of July, 1854. Such possession is sufficient to maintain trespass quare claw-sum. If however the plaintiff’s cotenants could be regarded as tenants at will of his share in the estate, still the action would bo maintainable for acts injurious to the freehold., Davis v. Nash, 32 Maine R., 411.

The gravamen of complaint as alleged in the writ, is the breaking and entering of the defendant into the plaintiff’s close or mill, on the 8th of July, 1854, and thereafterwards tearing down and destroying said mill, and taking and carrying away the materials thereof, whereby the plaintiff has been wholly deprived of the benefit of his said mill. It is, in substance, a usurpation of the fee, and an expulsion of the plaintiff from his portion of the estate. The defendant was not a *254 tenant in common with the plaintiff, and the acts complained of do not appear to have been done by the license or direction of any person that was. The plaintiff’s cotenants seem to have been passive, taking no adversary part in depriving the plaintiff of his share of the profits of the mill. They merely assented to the title assumed by the defendant, and agreed to account to him for the profits of the plaintiff’s share, and subsequently did so. This case is therefore wholly unlike that of Rawson v. Morse and al., 4 Pick., 127 .

The authorities cited in defence clearly show that possession in fact, is indispensable to the support of trespass quare clausum, and that after an ouster no action can be maintained for a subsequent trespass without a re-entry. If the defendant took possession under his levy, this was an ouster, notwithstanding his levy upon the locus in quo was void. The difficulty in the way of the defendant’s position, is, that the .facts in the case show a subsequent re-entry by the plaintiff before the acts of trespass complained of were committed. The testimony shows that he was in possession at the time, and that he received his share of the profits for the preceding year. The statements of Lebroke, who was a witness for the defence, as to what the plaintiff said about having a bond, or a claim from Whitney on the mill, are too indefinite and uncertain to authorize the conclusion that the plaintiff was in possession as tenant, or otherwise than in his own right. In view, therefore, of the facts, we find nothing in the relation of the parties which constitutes a defence; or in the nature of the occupancy by persons other than the plaintiff, which divested him of that possession in fact, legally necessary to the maintenance of this suit.

The only remaining question is that of damages. The proof shows that the mill, standing on the premises at the time when the defendant took possession, in July, 1854, had become nearly worthless. It was so rotten that it could not be repaired, and the witness, Lebroke, testifies that it was almost impossible to use it. In its then condition the profits of it could not have exceeded the cost of the repairs. Under *255 these circumstances the defendant co-operated with the co-tenants of the plaintiff in tearing down the old mill and erecting, at an expense of more than two thousand dollars, a new-one in its stead. So far as the materials obtained from the old mill were of value, and would answer, they were put into the new. While the plaintiff may, possibly, have lost some immediate profits, before the date of his writ, by his expulsion from the mill, he has largely gained in the increased value of his estate. His damages, therefore, can be only nominal.

Judgment for the plaintiff for one dollar.