The other argument of the plaintiffs in error is akin to the former, that before a creditor can question the disposition of a debtor's property, he must have completed his title by judgment and execution. This is true as to personal property, and for this reason, that the execution only, and not the judgment, is a lien on chattels. English cases were cited to show that it is true also as to real estate in England, and for precisely the same reason that a judgment there is no lien on land. It is the execution which establishes the legal relation between the creditor and the debtor's land, as here it is the execution which establishes the legal relation between the creditor and the debtor's goods. But our statutes bring judgment-creditors, as the contract of mortgage brings mortgagees, into direct relation with the debtor's lands, and because the law creates the relation, equity will protect it - will protect it not from such reasonable use and enjoyment of the lands by the owner as are usually incident to unencumbered ownership, but will protect it from such wanton and injurious acts as are of the nature of waste.
The decree is affirmed.
b. Severance by stranger or by the forces of nature.
30 Pennsylvania State, 185. - 1858.
Trover by Rogers and another, assignees of Beek against Gilinger and others, purchasers at sheriff's sale of realty of Beek, to recover value of ruins of a house alleged to be personal property and to have been converted by defendants. Judgment below for defendant. Plaintiffs sue out this writ of error.
Strong, J. - The owner of a lot of ground upon which had been erected a large frame building, conveyed the property to assignees in trust for the benefit of creditors. Prior to the assignment, a judgment had been recovered against the assignor, which was a lien upon the real estate conveyed. Two days after the assignment had been made, a storm of wind demolished the building, leaving the foundation and floors nearly entire, but breaking superstructure1 so that its materials could not be replaced, or used in the construction of a similar building. While in this condition the whole was levied upon and sold under executions founded upon the judgments against the assignor, and the voluntary assignees now claim that the ruins of the frame building did not pass at the sheriff's sale; that they were personal property, and that the purchaser under the venditioni exponas having used them, is responsible to the assignees in an action of trover.
It may be premised that the assignees stand precisely in the shoes of Beek, the first owner. If he could not assert against the purchaser at sheriff's sale, supposing no assignment had been made, that the fragments of the building were personalty, neither can they. It may also be remarked that the purchaser under the judgment has obtained all upon which the judgment was a lien.
Now clearly Beek, the first owner, could not have torn down the building, and converted the materials from realty into personalty, without diminishing the security of the judgment, impairing its lien, and wronging the judgment-creditor. Though the statutory writ of estrepement might not have been demandable until after levy and condemnation of the property, yet equity would have enjoined against any such wrong. The building, as such, constituted a large part of the creditor's security, and his lien embraced every board and rafter which made a constituent part of the structure. Nor were the rights of the assignees any more extensive. They were mere volunteers. They took the property as land only, encumbered as a whole, and in every part, by the lien of the judgment. Their title was in one sense subordinate to the right of the judgment creditor to take all which passed to them in satisfaction of his debt.
1Superstructure was "severed from its supports and broken up." - Ed.
In Herlakenden's Case, 4 Rep. 62a, it was resolved that if a lessee pulls down a house, the lessor may take the timber as a thing which was parcel of his inheritance. So in Bowles' Case, II Rep. Sib, it was held that if the lessee cut down timber, the lessor may take it. Though severed, it is a parcel of the inheritance.
Nor will the tortious act of a stranger be allowed to injure the reversion. 2 M. & S. 494; 1 Term. Rep. 55; Garth v. Sir John Cotton, 1 Vesey, Sr. 524. These principles are reasserted in Shult v. Barker, 12 S. & R. 272; 7 Conn. 232; 3 Wendell, 104. Nor will a severance by the owner of that which was a part of the realty, unless the severance be with the intent to change the character of the thing severed, and convert it into personalty, prevent its passing with the land to a grantee. Thus it was held in Goodrich v. Jones, 2 Hill, 142, that fencing materials on a farm which have been used as part of the fences, but are temporarily detached without any intent to divert them from their use as such, are a part of the freehold, and as such pass by a conveyance of the farm to a purchaser.
Is the rule different when the severance occurs not by a tortious act, nor by a rightful exercise of proprietorship, without any intent to divert the thing severed from its original use, but by the act of God? The act of God, it is said, shall prejudice no one (4 Co. 86b), yet the maxim is not true if a tempest be permitted to take away the security of a lien-creditor, and transfer that which was his to the debtor or the debtor's assignees. If trees are prostrated "per vim venti," they belong to the owner of the inheritance, not to the lessee. Herlakenden's Case, ut supra. He takes them as a part of the realty. True, he may elect to consider them as personalty, and this he does when he brings trover for their conversion, but until such election they belong to him as a parcel of the inheritance. If a tenant hold " without impeachment of waste," the property in the timber is in him; but if there be no such clause in his lease, and he remove from the land trees blown down, such removal is waste. That could not, however, be, unless, notwithstanding the severance, they continue part of the realty, for waste is an injury to the realty.