Adams v. Chamberlin , 1936 Ga. App. LEXIS 666 ( 1936 )

Guerry, J.

Mrs. J. C. Adams brought an action 'in trover against Mrs. Ida Chamberlin, to recover "one outbuilding, one 3-room building, one kitchen and storeroom garage, and one building approximately 20x50 feet, all of said buildings being situated on or upon the real estate now or formerly owned by the defendant, and which is described in [a certain deed], and all of which buildings are portable and removable buildings, not attaching to or becoming a part of the realty, and all of which buildings were erected and placed on said property by the predecessor in title to plaintiff while the land and real estate was owned by C. H. Collins, the predecessor in title to the defendant, under a specific agreement that the same was to remain personal property and fixtures and be removable, and the defendant, Mrs. Ida Chamberlin, acquired the title to the property with actual notice thereof, subject to the rights of the plaintiff and her predecessor in title to said buildings of the value of $1000, and to which petitioner claims title.” A general demurrer setting out that the above-described buildings constituted realty and not personalty, and could not therefore be the basis of a trover action, was. sustained and the suit was dismissed. The plaintiff excepted to that order.

In Woods v. McCall, 67 Ga. 506, the defendant removed,a cotton-screw which was attached to the realty of the plaintiff, and affixed it to his own realty. The plaintiff brought trover,.and recovered. Upon appeal the Supreme Court said: "Two questions are made in this record and insisted on here. The first is that trover can not be brought to recover a cotton-screw, because it is a permanent fixture. But the reply is that the defendant had detached it from the plaintiff’s realty and moved and affixed, it to his own. When he detached it, it became that thing for which trover would lie, and the conversion was complete at that moment and the right of action then arose, and this right could not be defeated by the defendant’s fastening this chattel to his own real estate.” See, in this connection, Camp v. Horton, 131 Ga. 793, 798 (63 S. E. 351); Kennedy v. Smith, 149 Ga. 61 (99 S. E. 27). Under the Code, § 85-301, “Realty or real estate includes all lands and the buildings thereon, and all things permanently attached to either, or any interest therein or issuing out of or dependent thereon.” Buildings are therefore a part of the realty and title thereto is in the owner of the land. “A tenant during the term or a continuation thereof, or while he is in possession under the landlord, may remove trade fixtures erected by him.” § 61-110. "While a tenant has no right to remove permanent fixtures (§ 61-109), yet he may by agreement reserve the right to remove sucli permanent fixtures. However, we do not think it follows that the right to remove places title to permanent buildings erected on land in him so that an action of trover will lie to compel the delivery of the building after he ceases to be a tenant and surrenders possession of the premises. A suit for specific performance of his contract or an action for damages for refusal to allow him to move the building is preserved to him under a valid contract. A piece of machinery or article used about a business or house may be attached to the realty, as a syrup-kettle or cane-mill (Brigham v. Overstreet, 128 Ga. 447, 57 S. E. 484, 10 L. R. A. (N. S.) 452, 11 Ann. Cas. 75), or a furnace (Lasch v. Columbus Heating & Ventilating Co., 45 Ga. App. 200, 164 S. E. 211), and yet not so lose its identity that title, might not be retained thereto and'an action of trover brought therefor. Such articles are not fixed by our Code as parts of the realty as are buildings. “‘Whether an article of personalty connected with or attached to realty becomes a part of the realty, and therefore such a fixture that it can not be removed therefrom, depends on the circumstances,’ and the doubt is to be settled by the jury.” Pendley Brick Co. v. Hardwick, 6 Ga. App. 114 (64 S. E. 664). A building is a part of the realty by statute law of this State, and trover will not lie to recover such building before it has become personalty by being detached from the land. The court did not err in sustaining the demurrer.

Judgment affirmed.

Broyles, C. J., concurs.