Patch v. Loring

Shaw C. J.

delivered the opinion of the Court. It appears to us quite impossible to maintain this action for use and occupation. The evidence does not show, that the relation of landlord and tenant ever subsisted between the plaintiff and the defendant. There was certainly no express agreement of hiring and letting, and the case does not disclose facts from which such agreement can be implied. The plaintiff took a mortgage of Sherman, on a certain building, erected upon the land of the defendant, as of personal property, before the statute upon the subject of mortgages of personal estate. This was accompanied with a stipulation, that the mortgagee should remain in possession for one year. Subsequently on the same day, Sherman the owner, made another mortgage, on the same building, to the defendant, and afterwards included the samo with other personal property in a second mortgage to the defendant ; and still later, for a valuable consideration, the defendant took a release and conveyance of the whole properly to himself. It does not appear, that after the time limited it? the original mortgage, during which Sherman was to remain in possession by the terms of the mortgage, the plaintiff ever entered upon the building, either for the purpose of using it on the defendant’s land, or of removing it, if he had a right to do either. It is impossible from these facts to raise an implied promise, on the part of the defendant, to pay the plaintiff for the use of this building. In truth, the building as well as the land were his own, subject only to a mortgage to the plaintiff.' It would seem difficult to extend this right, beyond that of removing the building from the defendant’s soil.

The claim for money had and received is probably founded in the supposed agreement, arising from the arrangements between Sherman and the defendant, that he the defendant would pay the plaintiff the amount of the debt secured by this mortgage. Whether in point of law here was such constructive priority as would be sufficient to maintain assumpsit, and whether if the facts were proved, they would maintain the action, on the second count, we think there is no occasion to consider, because there is no evidence to establish the fact. The evidence is full, that the conveyance was taken by the defendant, subject to the plaintiff’s mortgage, and that the amount of the plaintiff’s debt was deducted from the estimated value of the estate as paid by the defendant to Sherman. If therefore Sherman had been compelled to pay his note to the plaintiff, on the personal security, the defendant, in virtue of his agreement, would probably be bound to reimburse and indemnify him. But there seems to be nowhere in these proceedings, any promise or undertaking on the part of the defendant, to pay the plaintiff. The debt of the plaintiff is only alluded to, as constituting a charge or lien upon the property conveyed to the defendant, thereby pro tanto diminishing its value. We. are therefore of opinion, that the action cannot be maintained upon either count, and that judgment must be entered on the nonsuit.