Hutchins v. King
68 U.S. 53

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U.S. Supreme Court

Hutchins v. King, 68 U.S. 1 Wall. 53 53 (1863)

Hutchins v. King

68 U.S. (1 Wall.) 53

Syllabus

1. Growing timber constitutes a portion of the realty, and is embraced by a mortgage of the land. When it is severed from the freehold without the consent of the mortgagee, his right to hold it as a portion of his security is not impaired.

2. when the amount due according to the stipulation of the mortgage is paid, the lien of the mortgage upon the timber thus severed is discharged, and the property reverts to the mortgagor or any vendee of the mortgagor. Any sale of the timber by the mortgagee or assignee of the mortgage after such payment is a conversion for which an action will lie by the mortgagor or his vendee.

3. By the law of New Hampshire, the interest of a mortgagee is treated as real estate only so far as it may be necessary for his protection, and to

Page 68 U. S. 54

give him the full benefit of his security; he holds the timber growing on the land as a portion of the security only, and does not become its absolute owner when it is severed from the land.

In September, 1853, Dunn and his partner having bought timber land in New Hampshire, of Goodall, mortgaged it back to him, as security for the payment of the purchase money. the purchasers having given their notes for the money and the mortgage being intended to secure their payment. One of the notes was payable September 1, 1854, another September 1, 1855, and a third, September 1, 1856, all of them with interest from an anterior date, to-wit, from June, 1853. The first note was paid at maturity, but the second was not paid until five months after maturity, while neither on it nor on the third note was any interest paid until two years after it became due. It was then collected by process of law.

The mortgage contained a stipulation that the mortgagors might enter and cut timber to the value of ten hundred dollars, and afterwards as fast as they made the several payments designated in the mortgage, but if they failed to make any one of the payments designated, they were "to cease cutting, and to yield possession" until the amount was paid; "we to cut timber" -- was the language of one part of the mortgage -- "as fast as we pay the notes, and no faster." During the time that the mortgagors were thus in default by nonpayment of the second note and of interest on both it and the third, they entered and cut timber, and in June, 1856, sold it to one King. In September, 1856, two persons, named Hutchins and Woods, who had succeeded by assignment to the rights of Goodall, the mortgagee, took possession of the timber thus cut, sold it, and appropriated to themselves the proceeds, the sale of the timber by them being, as it appeared, after the unpaid interest had been collected.

In 1859, King, who had purchased from the mortgagors, brought an action on the case against Hutchins and Woods to recover the value of the timber which they had thus taken

Page 68 U. S. 55

possession of and sold. And among several questions raised on the trial was this -- the only one considered by this Court -- whether the assignees of the mortgage, Hutchins and Woods, were liable to King, the vendee of the mortgagors, for the value of the timber which they had sold after they had received the principal and interest due to them.

The court below ruled that they were not; and the correctness of this ruling was the chief point now in issue here.

The record had no proper bill of exceptions. The bill, so called, gave the rulings of the court, but did not show that exceptions to these rulings were taken by either party. No objection was, however, made to the record on this ground by counsel on the argument, and the Associate Justice of this Court who presided at the circuit where the cause was tried informed the court that an exception to the ruling on the material point considered had been in truth taken, and that the omission of the bill to state the fact was a clerical error.

Page 68 U. S. 56

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