Berthold v. Fox

Wilson, Cb. J.

By the Court Tbis case comes before us on an appeal from an order denying tbe plaintiff a new trial.

, Great stress is laid by tbe appellant on tbe alleged fact “ that at tbe time the mortgage was executed and delivered, tbe possession of tbe land described in said inortgage-was *505 actually delivered to the mortgagee, (who assigned to the plaintiff,) and remained in him and his assignee, the plaintiff, as in the complaint set forth.” The complaint on this point alleges that on the 16th day of June, 1858, the owner of the land conveyed it to Amedee Berthold, under whom the plaintiff holds, and “ that at the time of the execution and delivery of said mortgage, as aforesaid, the said Nathan C. D. Taylor and defendant Patrick Pox, (mortgagors,) did then and there deliver to said Amedee Berthold full and entire possession of said-lands conveyed by said mortgage, and the said Amedeo Berthold then and there entered into full possession thereof under-the mutual understanding and agreement by and between the-said mortgagors and said Berthold, that he should have and hold possession of said lands until the money received by said mortgagor should be paid, and said mortgage fully satisfied.” It is not alleged that the mortgagee remained in possession even one day, or that he assigned or conveyed, or attempted to assign pr convey to the plaintiff, his assignee, the possession, or right of possession, or that the plaintiff ever was in possession. The evidence offered, therefore, would at best have only shown that the plaintiff’s grantor was in possession for an indefinite period of time, and' from the facts alleged in the complaint it is apparent that at least during the years 1862, 1863, 1864 and 1865, neither he nor the plaintiff was in possession. It is not pretended that a right to the possession was secured to the mortgagee by any covenant or stipulation in the mortgage, or. by any written agreement, and it is a rule of evidence that in the absence of fraud or mistake, parol evidence is inadmissible to vary a written contract. The writing is conclusively presumed to set forth the whole agreement of the parties, and'the extent and nature of the agreement.

The appellant^ therefore, could not have been permitted to *506 prove by parol, for the purpose of varying the mortgage, any understanding prior to, or contemporaneous with its execution, and fraud or mistake not being alleged, the terms of the mortgage bounds the rights and liabilities of the parties. It is settled in this State that ordinarily the owner of a mortgage of real estate is not entitled, before a foreclosure, to the possession of the lands mortgaged, or of the timber growing or lying thereon. Adams vs. Carrolton, 7 Minn., 456 ; Donnelly vs. Simonton, ib., 167; Berthold vs. Holman, 12 ib., 337. And we think this case is not an exception to the general rule. When this mortgage was given, a mortgagor had one year after the sale of the mortgaged premises within which to redeem, but had not the joossession between the time of the sale and the redemption. Subsequently, and before the foreclosure, the law was so changed as to give him the possession during that time, on' payment of interest. This change in the law, the appellant insists, impairs the obligation of his contract. When this case was last before us, we held — following the earlier decisions of this Court — that it was competent for the legislature’to make such change, and we are still of the opinion that that decision is supported by the authorities therein cited. If it is by virtue of the contract of the parties that the mortgagor is permitted to retain possession, on the payment of a given rate of interest in advance, clearly it would be impairing the obligation of that contract for the legislature to give him the possession on the payment of a less rate of interest, or without payment in advance, and the earlier cases in this Court could not be sustained on principle. A right secured by contract can no more be modified, limited, or made to depend on any conditions or terms, than it can be taken away. The ground on which the earlier decisions of this Court were based, and the only ground on which they can be sustained, is, that the possession during *507 the time allowed for redemption is not a right secured by the contract, but one that merely relates to the remedy, and which is therefore within the control of the legislature. This' case differs from those in circumstance, and not in principle. And we think the doctrine which has so long been considered settled should not now be ‘questioned.

The plaintiff having neither the possession, nor right of possession, cannot maintain this action. Berthold vs. Holman, 12 Minn., and cases there cited.

The fact that Taylor and Fox were the mortgagors, and owners of the land, and Fox and his partner O’Brian cut and removed the timber, does not change the aspect of the case.

The possession of one tenant in 'common, is presumed no^ to be unlawful, or adverse to his co-tenant, and it is not doubted but that O’Brien acted in the premises under license and authority from Fox.

It is alleged as error, that the Court permitted the defendants on the trial to show what had been the highest market value of the logs at any time after they were replevied.

There does not appear in this case a word of evidence to show fraud, malice, negligence or oppression on the part of the plaintiff, and there is no circumstance distinguishing this from an ordinary action for the claim and delivery of personal property, to the possession of which the plaintiff honestly believes himself entitled. Under these circumstances, at any rate, the jury should have found the value of the property at or about the time it was replevied by the plaintiff, and it-was error to permit evidence to go before them of its value at any other time. Bee Sedgwielc on Measure of Damages, 481, and cases therein referred to. The verdict shows that the jury was probably misled by this evidence, for the damages found far exceed what they would be, measured by the rule above indicated.

*508 There were ho special damages proven, and under such circumstances the defendants were only entitled to the value of the logs at the time of the taking, with interest on that sum up to the time of the trial. The Court charged the jury: “If you believe the plaintiff took the logs wrongfully, the rule of damages in this case we instruct you, is, the market value of the logs at the time they were taken by the plaintiff, unless you believe from the evidence, that the plaintiff took said logs maliciously, in which case, you will find the highest market value between the time of taking and the trial of this cause.” The jury had no right to find that the plaintiff took the logs maliciously, for there was no evidence to justify such finding. That the plaintiff erred in his remedy, or as to his right to the logs does not show malice, or make a case for punitive damages, but if this was such a case, it would not be incumbent on, but merely discretionary with the jury, to find the highest value of the logs.

The order, appealed from is reversed and a new trial ordered.