Powers v. Harris , 68 Ala. 409 ( 1880 )

STONE, J.

When this case was before us at a former term—57 Ala. 139—we said : “ Houses, as a general rule, are part of the freehold, and pass or descend with the land. The prima facie intendment is that they are part of the realty ; and if there be no proof to take tbe case without the general rule, they are part and parcel of the land, and whoever owns the land owns the houses standing thereon.” The lumber for the conversion of which this action was brought, being part and parcel of a house or houses, and having been employed therein, in their erection, it was incumbent on plaintiff to prove it was but a chattel, and not part of the freehold.—Meigs’ Appeal, 26 Penn. St. 28; Hill v. Sewald, 53 Penn. St. 271; Ottumwa, W. M. Co. v. Hawley, 24 Amer. Rep. 719; Hunt v. B. S. I. Co. 37 Mass. 279; Holland v. Hodgson, 7 L. R. Com. Pl. 328; Note 1, Elwes v. Mawe, 2 Sm. Lead. Cases, (7th Ed.) 200.

This depended on the agreement Kennedy had made with Powers and the authority the latter had given him. -It was part of the derivative title Harris set up in this action. Unless it was shown that by the consent and agreement of 'Powers, Kennedy reserved the ownership of the houses, with the right to use and remove or dispose of them, they were part of the realty, and could not be the foundation of an action of trover. If, however, such was the agreement, then the houses, with the lumber, were but chattels, and trover could be maintained for their conversion. .As bearing on the question of Kennedy’s power over the houses, and his right to sell them, Powers was asked, “ What he said to, and what authority he gave to said Kennedy, prior to his sale to plaintiff, about the sale of the lumber in the houses.” The Circuit Court erred in not allowing this question to be answered.

As we understand the case made by this record, plaintiff based his right to recover on two grounds : First, the alleged, original agreement that the houses should remain Kennedy’s property, with the right to remove the lumber, or the sawed lumber he had purchased from Powers. The testimony rejected bears on this phase, of the contention. The second ground on which a recovery was claimed, was that before purchasing, Harris inquired of Powers as to Kennedy’s right to sell, was informed by him that Kennedy did have authority to sell the lumber, or, some designated part of it, and that thereupon he purchased and paid for it. ’ If this be true, it amounts to an estoppel, and, unexplained, vested title in Harris, to the extent Powers had admitted Kennedy’s right to sell. The testimony bearing on each of these issues was in conflict, and it was necessary the jury should pass upon it. We can not know on which issue they founded their verdict, and hence, can not affirm that the exclusion of the evidence noted above did no injury. There are other questions raised in this record, but wedo not consider them well taken.

Reversed and remanded.