Hanson had a valid mortgage, duly recorded, from Thomas Horne of the grass on the Batchelder place, which Horne agreed to cut and put into the barn in good condition, without expense to Hanson. The grass when cut and made into hay was commingled by Home with other hay grown on the French place. He then conveyed to the plaintiff the hay thus commingled. The mortgage lien was not destroyed by the act of the mortgagor in commingling the mortgaged property with his other hay; and the plaintiff by her purchase took the hay subject to the Hanson mortgage.
The rights of parties in a case of confusion of goods may be expressed as follows: "If the goods are accidentally mingled, and they are of such character that they can be distinguished *Page 203 and separated, there will be no change of property, but each is entitled to his own, if they are of such a nature that they cannot be identified and separated, as corn, oil, wine, hay, etc., then each is entitled to his aliquot part of the entire quantity." Moore v. Bowman, 47 N.H. 494, 501. As the commingling was not accidental on the part of the plaintiff's vendor, this statement of the law is sufficiently favorable to the plaintiff.
Hanson before foreclosing requested the plaintiff to show him the hay cut from the Batchelder place. She declined, denying that Thomas Horne had any hay in the barn. Hanson thereupon, in the exercise of his legal right of foreclosure, sold enough of the hay in one of the bays to satisfy his mortgage debt and expenses of foreclosure. In the bay there were between three and four tons cut on the Batchelder place. Hanson sold three and one half tons from that bay, practically the same quantity that was cut, and carried away three tons. The hay in the bay was all of the same quality. As he took no more than his aliquot part (in fact one half ton less), it follows that the plaintiff has no legal grievance against him by reason of the foreclosure proceedings.
Exceptions overruled.
WALLACE, J., did not sit: the others concurred.