Affirmed, with costs.

(b.) Without intent that severance shall be permanent.

Goodrich V. Jones

2 Hill(N. Y.), 142. - 1841.

Trover by Jones against Goodrich for taking and converting manure and boards, alleged to be the property of Jones.

Jones contracted to sell a farm to Goodrich and later conveyed a part thereof to Goodrich, and the residue, with consent of Goodrich, to one Vose. When the deeds were executed the boards were on Vose's part. They had all been in a fence on that part and some still remained so; though a good many of them were displaced, some let down and and some blown down. After the transfer Goodrich converted to his own use both boards and manure.

Judgment by the justice for Goodrich. On certiorari by Jones the Common Pleas reversed this judgment on the ground that the manure was personal property and did not pass to the vendee. Goodrich brings error to this court.

By the court, Cowen, J. - The Common Pleas appear to have taken the same view of Goodrich's or rather Vose's title to the boards, as did the justice. There cannot be a doubt that they were right. Fences are a part of the freehold; and that the materials of which they were composed are accidentally or temporarily detached, without any intent in the owner to divert them from their use as a part of the fence, works no change in their nature. Vid. Walker v. Sherman, 20 Wend. 639, 640.

With regard to the manure, we have held that even as between landlord and tenant, it belongs to the former; in other words, it belongs to the farm whereon it is made. This is in respect to the benefit of the farm, and the common course of husbandry. The manure makes a part of the freehold. Middlebrook v. Corwin, 15 Wend. 169. Nay, though it be laid up in heaps in the farmyard. Lassell v. Reed, 6 Greenl. 222; Daniels v. Pond, 21 Pick. 367, The rule has always been still stronger in favor of the vendee as against vendor, and heir as against executor. In Kittredge v. Woods, 3 N. H. Rep. 503, it was accordingly decided, that manure lying in a barn-yard passes to the vendee. Vid. also Daniels v. Pond, before cited.

The case of Kittredge v. Woods, was very well considered; and the right of the vendee to the manure, whether in heaps or scattered in the barn-yard, vindicated on principle and authority I think quite satisfactorily.

There are several English dicta which conflict with our views of the right to manure, as between landlord and tenant, and that of the court in New Hampshire, as between vendor and vendee. And Vid. 2 Kent's Com. 346, note c, 4th ed., and Carver v. Pierce, Sty. 66. But they may all be considered as repudiated by Middlebrook v. Corwin, Vide, the introductory remarks of Mr. Justice Nelson, 15 Wend. 170.

The judgment of the Common Pleas must be reversed; and that of the justice affirmed.

Judgment reversed.

Voorhis V. Freeman

2 Waits and SERGEANT (Pa.), 116. - 1841. [Reported herein at p. 224.]

(2.) Constructive Severance By Sale, Exception, Mortgage or

Agreement.

(a.) Sale or exception : by parol or deed.

Leonard V. Clough

133 New York, 292. - 1892.

Earl, Ch. J. - The material facts in this case are as follows: Prior to March 29, 1884, Adaline Clough owned a lot of land in the city of Auburn, upon which there was a small barn, and on that day she conveyed the lot by an ordinary warranty deed to the defendant, Robie Clough, who owned the adjoining lot on the northerly side of the lot thus conveyed. On the 1st day of April, 1884, Robie Clough, by an ordinary warranty deed, conveyed the same lot to her daughter, Mary Gilbert, with the exception of a strip six feet by twelve rods reserved from the northerly side of the lot. About one-third of the barn was upon the strip thus reserved, and thus the dividing line between the two lots after that conveyance ran through the barn, leaving about one-third thereof upon the land of Robie Clough and two-thirds thereof upon the land of Mary Gilbert. At the time of the execution of the deed by Robie Clough to Mrs. Gilbert and immediately thereafter she said to Mrs. Clough and her husband: "Now pa, and ma, the barn is yours; there can nobody interfere with you," and Robie Clough and her husband have ever since been in the occupancy of the barn. On the 28th day of October, 1886, Mrs. Gilbert by an ordinary warranty deed, conveyed the lot to Julia M. Sherwood, and at the time of that conveyance Mrs. Sherwood was informed that the barn belonged to Mrs. Clough and there was a parol reservation of the same. On the 1st day of November, 1886, Mrs. Sherwood, by an ordinary warranty deed, conveyed the lot to Mrs. Eunice Nellis, and at the time of that conveyance Mrs. Nellis was informed by parol that Mrs. Clough owned the barn and that it did not pass. On the 8th day of November, 1888, Mrs. Nellis, by an ordinary warranty deed, conveyed the lot to the plaintiff, and at the time of that conveyance he was informed by parol that the barn belonged to Mrs. Clough and did not pass with the conveyance After he had purchased the lot, Mrs. Clough informed him that she claimed the barn and intended to move it from the lot, and he told her not to move it. After that the defendants moved the barn from the lot, and then the plaintiff brought this action to recover for the value of so much of the barn as stood upon his lot and claimed to recover treble damages.

The barn was a wooden structure, worth less than $200., and rested upon four large stones at the corners and smaller stones at other places.

Upon the trial the plaintiff objected to the parol evidence given by the defendants to show the parol reservation of the barn at the times of the several conveyances of the lot. But the court overruled the objections and received the evidence. The court below held that the evidence was competent; that the barn after the conveyance by Mrs. Clough to her daughter became and remained personal property, and that she had a lawful right to remove the same, and judgment was entered upon the verdict in favor of the defendants.