The rule to be gathered from the cases is then stated thus by Judge Grover: " That the tenant may remove during his term all erections made by him for the purpose of trade that can be removed without injury to the land or something attached thereto." But in the case at bar no tenant sought to exercise any such right during his term. There is an utter failure to establish the first foundation for invoking the aid of such a principle, viz., that the relation of tenant at any time existed. When that fact was proven, it then would have become needful to show that the building in question was erected by the tenant for the purposes of trade or his business, and that he exercised his right of removal during his term.
Upon the facts proven on this trial, there can be no doubt that the defendants were the owners of the building in controversy, and it follows that the plaintiff is not entitled to recover its value. The learned judge erred in charging the jury that as a matter of law upon the facts proven, the plaintiff was entitled to recover. The judgment must be reversed and a new trial ordered, costs to abide the event.1 (2.) Chattel-owner Has License of, or Agreement with Landowner.
1 New York, 564. - 1848.
Action for breach of covenant of seisin. Judgment below for plaintiff (Palmer.) Mott appeals. The opinion states the facts.
Ruggles, J. - In December, 1841, Mott conveyed to Palmer a farm of land in Columbia county, by a deed containing the following covenant:
"And the said Philander Mott doth hereby covenant and agree that at the delivery hereof he is the lawful owner of the premises above granted, and seized of a good and indefeasible estate of inheritance therein clear of all incumbrance."
This action was brought by Palmer, the grantee, on the covenant in the deed, to recover the value of a rail fence which stood on the land when the deed was executed, but which did not belong to Mott, the grantor. The facts were, that the fence was erected on Mott's land in 1840 by one Brown, (who owned the adjoining land,) under an agreement between him and Mott, by which Brown was to fence in, temporarily, a part of Mott's land with his own, and to cut and take away the grass growing on Mott's land, with leave to take away the fence whenever he liked. After Mott conveyed to Palmer the land on which the fence stood, Palmer removed the fence and converted it to his own use. Brown thereupon sued him before a justice for the fence and recovered, Mott being a witness on that trial against Palmer. Although the evidence to prove these facts was at first offered by Palmer on the trial of this cause in the court below and rejected by the court, it was afterwards given by the defendant Mott.
1 PARKER, J., in a concurring opinion says, with regard to this building: "It is undisputed that Vroman, who built it, was not the owner of the land on which it was built, either in fee or as tenant for life or for years; nor is there any evidence tending to show that he built it pursuant to any agreement or understanding whatever with the owner of the land. So far as appears, he was a trespasser in erecting it upon the land where it was placed." - Ed.
The question now is whether in this action brought by Palmer, the grantee, against Mott, his grantor, on the covenant of ownership and seisin in the deed, Palmer is entitled to recover the value of the fence. A grantor who executes a conveyance of land undertakes to convey everything described in his deed; and by a covenant of seisin he assumes to be the owner of all he undertakes to convey. The deed in question purported to "grant and convey all that certain lot or farm of land situate in the town of Chatham, county of Columbia, bounded, etc., with the appurtenances," etc. The word land, when used in a deed, includes not only the naked earth, but everything within it and the buildings, trees, fixtures and fences upon it. Goodrich v. Jones, 2 Hill, 143; Walker v. Sherman, 20 Wend. 639, 640, 646; Green v. Armstrong, 1 Denio, 554; Com. Dig. Grant, E.; Co. Litt. 4a; 2 Roll. 265. A deed passes all the incidents to the land as well as the land itself, and as well when they are not expressed as when they are. Fixtures belonging to the owner of the land, being part of the land, cannot be reserved by parol when the land is conveyed; the deed conveys them to the grantee unless the reservation be in writing. Noble v. Bosworth, 19 Pick. 314. If the fence had belonged to Mott it would have passed by his deed; not by force of the word appurtenances contained in the deed, but without that word, and as part of the land. Trees, buildings, fixtures, and fences on a farm are corporeal in their nature, and the subject of seisin, like the land itself, of which they are regarded in the law as a part. Fences are perishable by the effect of time, and so are trees and houses; but indestructibility is not one of the essential attributes of real estate. Fences are not only indispensable to the enjoyment of real estate, but they are, in their nature, real estate to the same extent that houses and other structures on the land are so. A rail, before it is used in the construction of a fence, is personal property, and so is a loose timber before it is used in the construction of a house. When either is applied to its appropriate use in building a fence or a house, its legal nature is changed. It becomes real estate, and is governed by the law which regulates land, descending to the heir as part of the inheritance, and passing by a deed as part of the freehold. A fence may be easily detached from the earth, but not more easily than the stones which lie on its surface, and both are part of the land, and therefore it is that a building or fence-belonging to the owner of the land will pass by his deed of the land without being expressed or designated as part of the thing granted.
But the earth within specified boundary lines may be owned by one man, and the buildings, trees and fences standing on it by another. A man may have an inheritance in an upper chamber, although the title to the lower buildings and soil be in another. Shep. Touch. 206; 1 Inst. 48b. And it is a corporeal inheritance. 10 Vin. 202. Buildings and fixtures erected by a tenant for the purposes of trade belong to him, and are removable without the consent of his landlord. Holmes v. Tremper, 20 Johns. 30; Miller v. Plumb, 6 Cowen, 665; Doty v. Gorham, 5 Pick. 489. Herlakenden's Case, 4 Co. R. 63, affords an instance in which one man owned the land and another the growing trees upon it. In Rogers v. Woodbury, 15 Pick. 156, Putnam, J., in speaking of a house which a man had erected on land which did not belong to him, said " it might or might not be parcel of the realty. If the owner of the land owned the building, it would be so. If he did not, and the owner of the building had no interest in the land, the building would be personal property." Smith v. Benson, 1 Hill, 176, was the case of a dwelling-house and grocery belonging to one man, although standing on the land of another; and in Russell v. Richard, 1 Fairf. 431, the owner of land on which another man had erected a saw-mill by his consent, executed a deed for the land and the mill, but it was held that the conveyance passed no title to the mill, because it was the property of him who built it. The conclusion derived from these cases against the plaintiff's right of recovery on the covenant is, that the defendant's deed purports to be a grant of real estate only, and the fence in question being personal property was not a part of the premises granted, and therefore not within the scope of the covenant which relates to the realty only.