Stevens v. Smathers, 124 N.C. 571 (1899)

May 2, 1899 · Supreme Court of North Carolina

124 N.C. 571

HENRY B. STEVENS, GEORGE A. SHUFORD and JAMES H. MERRIMAN v. C. L. SMATHERS and J. WILEY SHOOK.

(Decided May 2, 1899).

Land Mortgage — Trespass—Injury to Realty.

1. Where a house is wrongfully pulled down and removed from mortgaged land, all the participants in the wrongful act are trespassers.

2. Any one, who with the knowledge of all the circumstances allows the material to be used in the reerection of the building on his own land, sanctions the trespass, and renders himself liable for the value of the removed house.

Civil Aotiok for special relief, tried before Moke, J., at Spring Term, 1898, of Haywood Superior Court.

The plaintiff, Merrimon, was the owner by assignment from plaintiff, Shuford, of a note for $1,000, executed by one D. M. Shook, and defendant, J. Wiley Shook, and secured by mortgage on house and lot from D. M. Shook and wife to plaintiff, Stevens, as trustee. In June, 1895, the defendant, J. Wiley Shook, without permission from trustee, or any one else, entered upon the mortgaged premises, and tore the house down and removed the materials to a lot occupied by him, belonging to defendant, Smathers, and reconstructed the house thereon, using some additional lumber. Shook contemplated buying this lot, and on August 17,1895, obtained a bond for title from Smathers for $250, but he never paid for the title. In a suit between them, the land was sold under decree of the Court by a commissioner, and was bought by Smathers at the contract price, and he now owns it.

There was evidence that Smathers knew of the tearing down of plaintiff’s house by Shook, and the removal of the materials to the lot owned by himself.

The charge of his Honor, excepted to by defendants, is substantially stated in the opinion.

In response to the issues, the jury found:

1. That $339.25 was balance due on mortgage debt.

2. That defendants had wrongfully removed and detained said house and converted it to their own use.

3. That the value of the house was $150.

4. That the injury to the mortgaged premises was $150.

Judgment was rendered against defendant, Smathers, for value of house, $150, as determined by the jury, and he appealed.

Messrs. Ferguson & Ferguson and Womaclc & Hayes, for O. L. Smathers, defendant (appellant).

Messrs. W. T. Orawford; Davidson & Jones; Merrimon & Merrimon, and George A. Shuford, for plaintiffs.

OuAiitc, J.

The plaintiff had a mortgage on a house and lot, to secure a debt due by J. Wiley Shook. The latter tore down the house, removed it and re-erected it upon the land of the defendant, Smathers. The jury found that the house when torn down was worth $150, and that the mortgaged property was impaired that much in value by .its removal. The Court charged the jury (there being evidence to sustain the charge) that if the removal of the house to the land of defendant Smatbers, was with Ms knowledge and assent, and be knew before it was rebuilt on bis land that it bad been taken from tbe land covered by plaintiff’s mortgage, bis acquiescence therein made Smatbers responsible for tbe value of tbe building. In this there was no error. Horton v. Hensley, 23 N. C., 163. We were treated to an argument whether tbe lien of plaintiff’s mortgage was not destroyed by tearing down tbe bouse and rebuilding it upon Smatbers’ land. But this is not a case where tbe lien is sought to be enforced against tbe removed building — as .in Turner v. Mebane, 110 N. C., 413, where tbe bouse was bodily rolled across tbe road upon another tract.

Here no lien is sought to be enforced against tbe building, but tbe mortgagee asks a personal judgment against Smatb-ers, who acquiesced in tbe removed building being rebuilt upon bis own land with knowledge that it bad been taken from premises covered by plaintiff’s mortgage. Tbe Court upon tbe verdict properly rendered judgment against Shook for tbe balance due on the mortgage debt, and against Smatbers for $150, tbe value of tbe removed bouse, and by whose removal tbe plaintiff’s security bad been impaired to that amount, payment of said $150 to be credited on tbe mortgage debt.

No error.