Wood v. County of Cheshire , 32 N.H. 421 ( 1855 )

Perley, C. J.

This action is a writ of entry, in which the demandant alleges that he has been disseized by the tenants, and is still held out by them, and he seeks by this suit to recover seizin and possession of the land. A judgment for the demand-ant on the issue joined would establish his right to the seizin and general possession of the demanded premises, and execution of the judgment would give him such seizin and possession. The right secured by the covenant in the deed under which the tenants claim, is to remove the building erected on the land, within a reasonable time after it shall cease to be occupied as a courthouse.

The conveyance to Coolidge, upon which, according to the opinion of the court heretofore given, the estate of the county determined, was made in 1840. The decision of the court was made and pronounced in July, 1854. The ground taken by the defendants is that a reasonable time for the removal of the building has not yet elapsed, and they ask that the judgment for the demandant shall be so modified and moulded as to give them further time to remove the building.

Courts have sometimes exercised the power of rendering qualified and conditional judgments, in order to carry into effect new provisions of the law or special contracts of the parties. Chickering v. Greenleaf, 6 N. H. 51; Kittredge v. Warren, 14 ditto 509 ; Commonwealth v. Pejepscut Pro., 7 Mass. 414.

The judgment for the demandant in a writ of entry, when he recovers the demanded premises, is, “ that he recover his seizin against the tenant of the tenements aforesaid,” and we have seen no instance in which the judgment in such case has varied from the stated form. Jackson on Real Actions 193.

The writ of possession given by our statute commands the sheriff that he “ cause the demandant to have possession of the said premises,” and a modified judgment would require the court to modify the form prescribed by the statute for the execution. We do not mean to disclaim for the court the power to modify the established form of judgment in a writ of entry, when the justice of the case may be found to require it; but we think that no such modification of the judgment is necessary in this case to protect any right that the tenants may still have under their deed to remove the building from the demanded premises.

The right to remove the building does not require the tenants to retain or take any possession or seizin of the land. They would enter temporarily, to remove the building as a chattel that under the deed belonged to them, provided it were taken off within a reasonable time. And the right to enter for the purpose of removing personal property gives no seizin or possession of the land, and is not even an interest in land within the statutes of frauds. Whitmarsh v. Walker, 1 Met. 313; Nettleton v. Sikes, 8 Met. 34 ; Wood v. Manly, 11 A. & E. 34.

The right claimed by the defendants is no more than the law implies in the absence of any express stipulation, where the tenant holds under an uncertain term, or contingency, as for the life of another. In such case the lessee has the privilege of removing fixtures, after the termination of his interest, provided he exercises that right within a reasonable time. Taylor’s Landlord and Tenant, § 532 ; Weeton v. Woodcock, 7Mees.& Wels. 14.

A writ of entry lies for land incumbered by a- highway; and we have seen no suggestion that any other than the usual general judgment has ever in such case been rendered for the demandant. Goodtitle v. Alker, 1 Burr. 130; Perley v. Chandler, 6 Mass. 456; Adams v. Emerson, 6 Pick. 57; Jackson v. Hathaway, 15 Johns. 447; Copp v. Neal, 7 N. H. 275.

An entry on land for a temporary and qualified purpose, which does not require any exclusive possession, is no interruption of the owner’s seizin; and in this case, if the defendants have still the right to remove the building, they may exercise that right without disseizing the demandant, or disturbing the general possession which he will take under his general judgment on this verdict.

Motion for a qualified judgment denied, and general judgment ordered on the verdict.