Davis v. Emery , 61 Me. 140 ( 1870 )

BaRROWs, J.,

dissenting. The barn or building for the conversion of which the plaintiff here claims to recover damages of the defendant, was originally the property of the defendant, attached to her farm as part of the realty. If she ever conveyed it to the defendant it was by the following instrument, unsealed, unwit-nessed :

§40.00 Neweielu, Nov. 6, 1865.

J. B. Davis bought of Elizabeth Emery one building 28 feet wide and 50 feet long now standing west of my house and barn. Said building is to be moved off from where it now stands by the first of May next. Price forty dollars. Received pay.

Elizabeth Emejk,y.

It is clear that this instrument was not designed to convey an interest in real estate. The object was to sever the building from the realty, provided the vendee observed the condition inserted in the bill of sale for a removal of it in a time specified.

It is impossible to distinguish the case in principle from Pease v. Gibson, 6 Maine, 81. In that case there was a sale by a sealed instrument of all the timber standing on a certain parcel of the vendor’s land. “ Said (vendee) to have two years from date to take off said timber.” It was not, as claimed in argument here, in terms a grant “ of only so much timber as the vendee might take off within the time limited,” but the court held, in an opinion the sound reason and good sense of which are manifest, that it was equivalent only to a sale of so much as should be thus severed and removed and that it was only a conditional sale of all the timber, the vendee’s rights therein depending upon his performance of the condition inserted in the instrument under which he claimed. A like •construction was approved and followed in Howard v. Lincoln, 13 Maine, 122. As between the buyer and seller here, the building was not a personal chattel unless the buyer performed the condition for removal. When a sale is made upon such a condition it is not necessary to have an express stipulation for a forfeiture in case the condition is not complied with. The title depends upon the performance of the condition. The instrument is to be construed as a whole. The sale was a conditional one. Judevine v. Goodrich, 35 Vt. 21; Washburn on R. P. vol. 3, p. 376. The building was real estate and remained so until severed, and if not severed by the time fixed the grantee in the bill of sale had no title unless the time for removal was extended. That these parties so understood their contract is perfectly clear from the testimony of the plaintiff. “ She said her husband would buy it of me. I told her that was probably all right provided he did so, but the time would be out soon and something must be done about it,'’ etc. To guard against the forfeiture he made the memorandum upon the bill, — “ The time of removal of this building is indefinitely postponed,” which she declined to sign.

It is unnecessary for us to determine whether this was a condi tion precedent or subsequent, or whether the language of the in struction was technically correct, if the same results followed so far as the rights of the parties were concerned. Whether the title to the building revested in the defendant or never passed from her, makes no difference. The real question was whether there was an extension of the time, and to that point the plaintiff and defendant both directed their evidence. That evidence was contradictory. The jury have settled the question in favor of the defendant upon testimony so conflicting that it is impossible for us to say peremptorily that the decision was erroneous.

Motion and exceptions overruled.

WaltoN and Dakrotith, Jj., concurred in tbe foregoing opinion.