(Decided 2 May, 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.
ACTION for special relief, tried before Hoke, J., at Spring Term, 1898, of HAYWOOD.
W. T. Crawford, Davidson Jones, Merrimon Merrimon, (572) and George A. Shuford for plaintiffs.
Ferguson Ferguson and Womack Hayes for C. L. Smathers, defendant.
The plaintiffs 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 reerected it upon the land of the defendants 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 of the house to the land of the defendant Smathers was with his knowledge and assent, and he knew, before (573) it was rebuilt on his land, that it had been taken from the land covered by plaintiffs' mortgage, his acquiescence therein made Smathers responsible for the value of the building. In this there was no error. Horton v. Hensley, 23 N.C. 163. We were treated to an argument whether the lien of plaintiffs' mortgage was not destroyed by tearing down the house and rebuilding it upon Smathers' land. But this is not a case where the lien is sought to be enforced against the removed building, as in Turner v. Mebane, 110 N.C. 413, where the house was bodily rolled across the road upon another tract.
Here no lien is sought to be enforced against the building, but the mortgagee asks a personal judgment against Smathers, who acquiesced in the removed building being built upon his own land with knowledge that it had been taken from premises covered by plaintiffs' mortgage. The court, upon the verdict, properly rendered judgment against Shook for the balance due on the mortgage debt, and against Smathers for $150, the value of the removed house, and by whose removal the plaintiffs' security had been impaired to that amount, payment of said $150 to be credited on the mortgage debt.