If this be a sound conclusion, a grantor could not be made liable on the covenants in his deed, although he had previously and privately sold, with a view to removal, all the houses, buildings, mills, fences, and growing timber on the land conveyed. Indeed, if this doctrine prevails, the gravel, clay, stone and loam might also be converted into personal property by such a sale, and carried off the land, without violating the grantor's covenant. Let us test the correctness of this conclusion in a few words. It is true the fence in one sense was not a part of the thing granted. It did not pass by the deed. In the same sense, if some stranger had been the owner of one-half the farm, that half would not have been part of the thing granted, because it would not have passed by the deed. But the fence was within the description of the thing granted as clearly as the land itself; and being within the description, it was a part of that which the deed purported to convey, and of which the grantor covenanted that he was the owner. If it be yet doubted whether the fence (being in fact the personal property of Brown) was within the description of what the grantor professed to convey, that doubt can be solved in a moment by reflecting that it would undeniably have passed by the deed if the grantor had been the owner of it; although it could not have so passed if it had not been within the description.
It all comes to this: The grantor undertook to convey it as part of the realty by a deed which would have been effectual for that purpose if he had been the owner of it, as by deed he professed to be, but was not. It is therefore a case in which the covenant of seisin affords a remedy; and although the amount in controversy is trifling, the right is clear; and it seems to be perfectly just that the grantor should pay for the fence, because there is nothing in the case to show that Palmer, when he accepted the deed, was informed by Mott or otherwise knew that it belonged to Brown.
The judgment of the Supreme Court must therefore be affirmed.1
15 Indiana, 142. - 1860.
Perkins, J. - The facts in this case are substantially these: Jared employed Reese to erect a house on a certain lot of ground," and was to pay him therefor by conveying to him a certain other lot. Reese was to furnish the materials.
Reese built the house, and then discovered that in the agreement under which it was built, there were mistakes in the numbers of the lots to be built upon, and to be taken in payment. Reese, apprehending loss to himself, and with a view to prevent it sold, while yet in possession thereof, the house he had erected for Jared, to one Schmall, and moved it on to a lot of his, placing it upon a permanent brick foundation.
Jared then sued Reese and Schmall, not for the value of the house, but to recover possession of the specific article; the house itself. It does not appear that Schmall was aware of the fact, that Reese had no right to sell and remove the house.
When the lumber, out of which the house in question was constructed was growing in the tree, it was real estate. While at the saw-mill, in the log and lumber, it was personal estate. When erected into a house, on a permanent foundation, on Jared's lot, it became real estate again. When traveling on rollers from Jared's to Schmall's lot, it became, a second time, personal estate; and when fixed on a permanent foundation on Schmall's lot, it returned again to its original character of real estate. Whose real estate? Kent lays down that, "If A. builds a house, with his own materials, upon the land of B., the land, said Pothier, is the principal subject, and the other is but accessory; for the land can subsist without the building, but the building cannot subsist without the land on which it stands; and, therefore, the owner of the land acquired, by right or accession, the property in the building. It is the same thing, if A. builds a house on his own land with the materials of another; for the property in the land vests the property in the building by right or accession, and the owner of the land would only be obliged (if bound to answer at all) to answer to the owner of the materials for the value of them." 2 Kent, 362. He further says, that " The English law will not allow one man to gain a title to the property of another upon the principle of accession, if he took the other's property wilfully as a trespasser." Id. 363. According to the above quoted authority, the recovery in this case should have been the value of the house, not the house itself; and as the jury, in their verdict, did not find the value of the house, we cannot correct the judgment rendered, for want of data, and it must be reversed.
1See, however, Climer v. Wallace, 28 Missouri, 556. - 1859. - Ed.
b. The landowner annexes the chattel of another.
91 Michigan, 409. - 1892.
Trover for a portable saw-mill.
Plaintiff agreed to sell to one Myers a portable saw-mill, title and right of possession of same to remain in plaintiff until fully paid for;
1 The nature of the chattel and the mode and degree of its annexation may be such as conclusively to change its legal character from personal to real. If this is not the case then (a) the chattel-owner may never have assented to part with either title or possession; (b) he may have intended to part with possession, but not with title, as in bailment or conditional sale; (c) he may have acquired (technical) title from the landowner by chattel mortgage before the annexation.
In any of these cases (a, b, c,) the question may arise between the chattel-owner and (I) the grantee or mortgagee of the landowner, or (2) the execution creditor of the landowner, and such third person may or may not have had notice of chattel-owner's title. The chattel mortgage may or may not have been properly filed or registered.