Field v. Higgins , 35 Me. 339 ( 1853 )

Hathaway, J.

— Process for forcible entry and detainer of a building, which had been moved, by the defendant, on to the land of the Lewiston Water Power Company, where it was taken on execution, as the defendants’ personal property, and as such purchased by the plaintiffs, at the sheriff’s sale thereof, 19 July, 1851.

The first question presented by the case, is whether or not this process can bo maintained to recover possession of personal property.

If the building were not personal property, the plaintiffs acquired no title to it, by their purchase of the sheriff, for as such, acting under his statute authority he sold it to them. If it were personal property, and they acquired a lawful title to it, and the defendant wrongfully withheld it from them, they might have maintained replevin for it, or trover for its value. Russell v. Richards et al. 1 Fairfield, 429. 11 Lands and tenements,” only, are the subjects of this process, R. S. c. 128, and the argument of the counsel for the complainants assumes that the building was a tenement within the meaning of the statute.

The word tenement, in its legal sense, means an estate in land, or some estate or interest, connected with, pertaining to, or growing out of the realty, of which the owner might be dissiezed. Hence, in an indictment for forcible entry and detainer, it was necessary to allege a disseizin. Rex v. Dorny, 1 Salk. 260. But disseizin is not a term applicable to property merely personal.

“ Real estate consists of lands, tenements, and hereditaments. A tenement comprises every thing, which may be holden, so as to create a tenancy in the feudal sense of the word.” 3 Kent’s Com. 401.

There can be no doubt, that an interest in real estate is an essential element of the definition of the word “tenements,” as used in the statute. Inst. 6 A. 19 and 20. And the building as claimed to be owned by the complainants, being property entirely personal, this process cannot be maintained, and a nonsuit must be entered.

Shepley, C. J., and Wells, Howard and Rice, J. X, concurred.