In Popham, 38, this principle is further extended. The plaintiff in that case had mixed his own hay with hay of the defendant on his land, and the defendant took away the hay thus intermixed; and it was held, that he had a right go to do. But it was also held, that if the plaintiff had taken the defendant's hay and carried it to his house and there intermixed it with his own hay, the defendant could not take back his hay, but would be put to his action against the plaintiff, for taking his hay. If there be any doubt of the doctrine laid down in this case, it does not affect the present case. The doctrine laid down in the former cases is fully supported by the year books, 5 Hen. 7, 16; and I am not aware of any modern decison or authority in which this old doctrine of the English law has been controverted.
The case of Russell v. Richards, 1 Fairfield, 429, cited by the plaintiff's counsel, was decided on the ground, that the building in controversy was personal property and had never become a part of the freehold. In the present case it cannot be questioned, that the newly erected dwelling-house was a part of the freehold, and was the property of Davenport. The materials used in its construction ceased to be personal property, and the owner's property in them was divested as effectually as though they had been destroyed. It is clear, therefore, that the plaintiff could not maintain an action even against Davenport, for the conversion of the new house. And it is equally clear, that he cannot maintain the present action for the conversion of the materials taken from the old house. The taking down that house and using the materials in the construction of the new building was the tortious act of Davenport, for which he alone is responsible.
(3.) Between Land-contract-vendee Annexing, and His Vendor.
93 Michigan, 49. - 1892.
Montgomery, J. - The defendant, on the 18th day of June, 1887, contracted in writing to purchase of one William L. Jenks the N. W. one-quarter of S. \V. one-quarter of section 19, township 7 N., range 16 E. The contract was in the usual printed form, and contained a covenant on the part of the defendant that he would not commit, or suffer any other person to commit, any waste or damage to said lands or appurtenances, except for firewood or otherwise for his own use, or while clearing off the lands for cultivation in the ordinary manner. Immediately after entering upon the lands he erected a small dwelling-house thereon, and lived in it for two years. He then made default in his payments, and the plaintiff, to whom the contract had in the meantime been assigned by Jenks, terminated the contract, and required the defendant to surrender possession. The house was a one-story frame house, 20 by 26, and suitable for the purposes of a dwelling house, to be used upon the land in question. After the removal of the house from the premises, it was placed upon a 40 across the street, and plaintiff, after demand, brought replevin. The circuit judge directed a verdict for the plaintiff, and the defendant appeals.
Two questions only are presented in appellant's brief. It is first claimed that replevin will not lie, because the house had become a fixture upon the land to which it was moved, and was therefore real estate; second, that, as the house was occupied as a homestead by the defendant and his family, the wife was a necessary party.
We think that when this house was erected upon the land held under contract it became a part of the realty, and as such the property of the owner of the land, subject only to the rights of the purchaser therein. Kingsley v. McFarland, 82 Me. 231, 19 Atl. Rep. 442; Milton v. Colby, 5 Metc. (Mass.) 78; Iron Co. v. Black, 70 Me. 473; Tyler, Fixt. 78. It being severed from the land, it became personal property, and replevin would lie unless it became affixed to the realty by the tortious act of the defendant in removing it and placing it upon other lands. But we think no such legal effect can be given to the defendant's wrong. The house was moved upon land of a third party. There was no privity of title between the ownership of the house and the ownership of the land to which it was removed. The cases cited by defendant of Morrison v. Berry, 42 Mich. 389, and Wagar v. Briscoe, 38 Id. 587, do not apply.
The house remaining personal property in the wrongful possession of defendant, it follows that no homestead rights, which consist in an interest in lands, attached.
The judgment is affirmed, with costs.
b. Annexer is tenant for life.
107 North Carolina, 432. - 1890.
Case submitted without action.
Eliza Sasser and Amanda Cassely were the owners of a tract of land in common. Mrs. Sasser died and her interest in the land descended to the defendants as her heirs, her husband, Eli Sasser, becoming tenant thereof for his life by the curtesy. Thereafter Eli Sasser and others annexed certain machinery to this real estate for the purpose of running a mill and a cotton-gin.
The life tenant died bequeathing these annexations to his second wife and others, and plaintiff, as executor of his will, now seeks to recover them from the remaindermen.
Judgment below for the executor. The remaindermen appeal.
Clark, J. - In the great case of Elwes v. Mawe, 3 East, 38, 2 Smith Ldg. Cases, Lord Ellenborough holds the doctrine of fixtures to depend largely in its application, upon the relations of the parties, which he divided into three clases.
1. Executor and heir. As between them, the common-law rule, that whatever is affixed to the freehold becomes a part of it and passes with it (quicquid plantatur solo, solo cedit) is observed in full vigor. In this class fall also mortgagor and mortgagee, vendor and vendee, as to whom the strict rule of the common law is still in force. Foote v. Gooch, 96 N. C. 265.