Clements v. Morton , 200 Ala. 390 ( 1917 )

The substance of the testimony in this cause, as shown by the foregoing statement of the case, discloses that the one-room plank house erected by plaintiff's stepmother with her own means, after the death of the father of plaintiff, was erected with the full understanding and agreement of all the heirs that the house should remain hers, to be disposed of as she saw fit, and that the same became a chattel with the right of removal.

"Houses, as a general rule, are part of the freehold, and pass or descend with the land. The prima facie intendment is that they are part of the realty; and if there be no proof to take the case without the general rule, they are part and parcel of the land, and whoever owns the land owns the houses standing thereon. * * * But this is not a conclusive presumption. It may be rebutted." Harris v. Powers, 57 Ala. 139; Powers v. Harris, 68 Ala. 409.

"By express contract between the parties the nature and status of the chattel as personal property was preserved and retained. That it was competent for the parties to contract to this end we think there can be no doubt. Nothing, perhaps, could be considered in its character more permanent, and more of a fixture, and as forming a part of the realty, than a house or building erected on the land, and yet a house may by contract of parties become a chattel with right of removal." Broaddus v. Smith, 121 Ala. 335, 26 So. 34, 77 Am. St. Rep. 61.

See, also, in this connection. Chalifoux Co. v. Potter,113 Ala. 215, 2l So. 322; Johnston, Rec., v. Philadelphia Mtg. Co., 129 Ala. 515, 30 So. 15, 87 Am. St. Rep. 75; Middleton v. Alabama Power Co., 71 So. 461, 196 Ala. 1; Roberts v. Caple, 8 Ala. App. 444, 62 So. 343.

The house, under the facts here disclosed, remained personal property, and subject to be disposed of as such, and the statute of frauds therefore is without application. Authorities supra.

In the instant case the right of no innocent third party is involved, as the undisputed evidence shows the defendant purchased the land with full knowledge on his part that the house was the personal property of plaintiff, and was not included in his purchase of the land, and, indeed, that defendant agreed to pay the plaintiff the sum of $50 therefor. The case of Johnston, Rec., v. Phila. M. Co., supra, relied upon by counsel for appellee, is readily distinguishable from the case here presented, and, indeed, the opinion in that case notes the distinction between that and the case of Broaddus v. Smith, supra, both cases being written by the same author.

There being no dispute in the evidence, the plaintiff was entitled to the affirmative charge, and reversible error was committed in giving the affirmative charge at the defendant's request. The judgment will be reversed, and the cause remanded.

Reversed and remanded.

ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.