We think a few plain principles of law require a reversal of this judgment. This barn at the time of the conveyance by Mrs. Clough to Mrs. Gilbert was a part of the realty, and there could be no parol reservation of it. The grantor could no more reserve the barn by parol than she could reserve trees growing upon the land, or a ledge of rocks or a mine or a portion of the soil. As between the grantor and grantee it is very clear that the grantor would not have been permitted to show that the barn was reserved by parol, as that evidence would have contradicted the deed which was absolute in form. If the grantor had removed the barn the grantee could have sued her for trespass and she could not have defended by showing a parol reservation of the barn. If it had been claimed in such a suit that it was part of an oral agreement or reservation that the barn should not pass, that fact could not have been shown, as it would have contradicted the deed. The deed contained covenants of warranty which covered the entire title to the real estate, and the grantor could not in such a suit have shown by parol that any part of the real estate was not covered by the covenants. So, too, if it be claimed that what was said by Mrs. Gilbert to Mrs. Clough immediately after the deed was delivered constituted a parol gift of the barn to her father and mother, the gift could not be operative because the barn at that time was a part of the realty. It had never been severed from the realty and had never been by any acts of the parties or the owners made personal property, and the parol gift of a portion of the real estate could not be upheld without violating the statute of frauds. The one-third of the barn which rested upon the lot owned by Mrs. Clough was and remained realty, and it is impossible to perceive how by mere words the other two-thirds could be converted into personalty. Can trees and other portions of real estate be converted into personalty by a mere parol gift and without severance?

It is clear that after the conveyance from Mrs. Clough to Mrs.

Gilbert the barn remained a part of the realty, and was covered by the deed and the covenants of warranty therein contained; and so the barn passed to each successive purchaser, and no grantor could dispute that the grantee took title to the barn; and thus the title to so much of the barn as stood upon this lot was finally vested in the plaintiff. All the deeds contained covenants of warranty. Those covenants run with the land, and each successive grantee could have the benefit of all the prior covenants. The plaintiff is in privity of estate with Mrs. Clough, and his rights are the same as they would have been if he had been her immediate grantee. He holds under her deed, and in an action by him for a breach of her covenants she could not dispute that the barn was a part of the realty. And in this action against her for removing the barn she cannot dispute that it passed under her deed. His rights are the same as Mrs. Gilbert's would have been if she had disputed Mrs. Clough's right to the barn, and, before she had conveyed, had sued her for removing it.

A careful scrutiny of the cases cited on behalf of the defendants shows that there is absolutely no authority for their contention in a case like this. If at the time of the conveyance of Mrs. Clough the barn had been personal property in the ownership of some other person, and the grantees had been notified of that fact, the title to it would not have passed by the successive conveyances. If this barn had been placed upon the lot by some third person with the consent of the owner and with the understanding that such third person could at any time remove it, it would have remained personal property and would not have passed to a purchaser under any form of conveyance providing such purchaser had notice of the fact. But where the land and the buildings thereon belong to the same person, then the buildings are a part of the real estate and pass with it upon any conveyance thereof. In such a case the grantor can retain title to the buildings only by some reservation in the deed or by some agreement in writing which will answer the requirements of the statute of frauds. Any other rule would be exceedingly dangerous, and would enable a grantor, in derogation of his grant, upon oral evidence, to reserve buildings and trees and other portions of his real estate, and thus, perhaps, defeat the main purpose of the grant. For these views the case of Noble v. Bosworth, 19 Pickering, 314, is a very precise authority.

We are, therefore, of opinion that the judgment should be reversed and a new trial granted, costs to abide event.

Judgment reversed.

Tyson V Post

108 New York. 217. - 1888.

Andrews, J. - The question whether the defendant Post acquired title to the plant and machinery of the marine railways embraced in the plaintiff's mortgage, as security for the $6,200 paid by him to the plaintiffs at the request of Carroll, to enable the latter to complete the first payment on the contract with the plaintiffs for the purchase of the land, does not depend upon the character of the property, whether real or personal, when placed upon the mortgaged premises. There can be little doubt, however, that the machinery, shafting, rollers and other articles became, as between vendor and vendee, and mortgagor and mortgagee, fixtures and a part of the realty. McRae v. Central Nat. Bank, 66 N. Y. 4S9. But as by agreement, for the purpose of protecting the right of vendors of personalty, or of creditors, chattels may retain their character as chattels, notwithstanding their annexation to the land in such a way as in the absence of an agreement would constitute them fixtures, Ford v. Cobb, 20 N. Y. 344; Sisson v. Hibbard, 75 Id 542, so also, it would seem to follow, that by convention, the owner of land may reimpress the character of personalty on chattels, which, by annexation to the land, have become fixtures according to the ordinary rule of law, provided only that they have not been so incorporated as to lose their identity and the reconversion does not interfere with the rights of creditors or third persons. The plant and machinery in question were personal property when placed on the land, and the only issue presented is, did the plaintiffs agree with Post that he might take the title to the plant and machinery for his security, free of the mortgage, and remove them at any time from the mortgaged premises, thereby reimpressing the property with the character of personalty. In determining this question is does not seem to us to be very material to inquire whether the deed from the plaintiffs to Cooney (the nominee of Carroll), and the mortgage back embraced, or was intended to embrace, the plant and machinery. Post was not a party to the instrument and is not concluded by them. The rights of Post depend wholly upon this agreement with the plaintiff, and if they received his money upon the agreement that he should have the plant and machinery, with the right to remove them without restriction as to time, the agreement was valid although by parol, and even if it contradicts the legal import of the mortgage; it being an agreement between different parties, it is not within the rule which forbids parol evidence to contradict a written instrument. The only point of disagreement between the parties relates to a restriction alleged to have been placed on the time within which Post should exercise the right of removal. The plaintiffs concede that the right of removal was given to Post, but they allege that it was subject to the limitation that the right should be exercised before any proceedings were taken to foreclose the mortgage. The defendant, on the other hand, claims that the right was unrestricted and absolute. The paper executed by the plaintiff on the closing of the transaction contains the restriction claimed by the plaintiffs. But we think the evidence sustains the contention of the defendant, that the paper was not delivered to or accepted by him, and that he had no knowledge of its contents. The question of fact, therefore, depends upon the other evidence bearing upon the actual agreement. It would not be useful to state the evidence in detail. It is sufficient to say that after a careful examination of the testimony, we have reached the conclusion that the claim of the defendant is most consistent with the conceded facts and is supported by a preponderance of evidence. The order of the General Term should, therefore, be affirmed, and judgment absolute directed in accordance with the stipulation.