Eddy v. Hall ( 1881 )

Elbert, O. J.

At the date of the sale to Emerson and West, the defendant Hall was the owner of the lot on which the building' in controversy stood. It ■ does not clearly appear how the building was attached to the realty, but it is prima facie real estate, and that it was attached in some permanent manner at the date of the sale is conceded by the argument.

The plaintiff in error relies on a constructive and not an actual severance.

The parties evidently contemplated the sale of the building without the land, and its severance and removal therefrom. The effect of the sale was to give Emerson and West, or their assigns, the right to enter upon the close of the defendant, to sever the building therefrom and remove it as personal property. Shaw v. Carbray, 13 Allen, 464; Tyler on Fixtures, 731, and cases cited.

Upon the subsequent refusal of Hall, the owner, to permit the severance and removal of the building, the plaintiff had her remedy, but it was not replevin. The court below correctly held that replevin would not lie. The building was real estate, and as such not repleviable. The agreement of the parties did not, as is insisted, operate to give it the character of personalty prior to severance.

We do not see that the ease is in anywise different in principle from the case of a sale of standing timber to be cut and severed from the freehold. When severed, the trees become personalty and not before. Claflin v. Carpenter, 4 Met. 580; Lawson v. Patch, 5 Allen, 586.

Nor do we find anything in the co-partnership agreement of Hall & Johnson, touching this building that changes the result. At the date of their articles of co-partnership, Efall was the owner of the freehold, and the building was already erected upon, attached to, and a part of the realty, and so remained during the continuation of the co-partnership. Thus, the true character of the sale to Emerson and West remains unaffected as a sale of a building affixed to the realty, with the right to sever and remove it.

Judgment of the court below is affirmed with cost.

Affirmed.