Harmony Building Ass'n v. Berger , 99 Pa. 320 ( 1882 )

Mr. Justice Paxson

delivered the opinion of the court, February 13th 1882.

The defendant was the owner of premises No. 2612 Girard avenue, in the city of Philadelphia, lie occupied the first story as a bakery, the balance of the building as a residence. The plaintiff held a mortgage upon the premises, which he foreclosed, and the property was sold by the sheriff. lie became the purchaser at the sheriff’s sale, and proceedings were instituted under the Act of Assembly to obtain possession. The defendant took away from the premises, as stated in the history of the case, “ the marble slabs from the counter, beater stove out of the chimney, and iron frame attached to the roof,” and this action of trespass was brought in the court below by the plaintiff to recover damages for said taking. The single question presented by the record is, whether the articles referred to were a part of the realty, and passed to the purchaser at the sheriffs sale.

There is no serious dispute as to the stove and the iron frame. The former was what is known as a Baltimore heater, a stove so placed in the chimney as to heat one or more rooms above it. Yet it was only a stove, and no part of the realty. The iron frame was something in the nature of a weather-vane, fastened to the roof, a plain upright rod, with the name of the defendant upon it. The principal object appears to have been to indicate the defendant’s place of business.

The question of the marble slabs was more doubtful. There was evidence that the counter was complete without them, and that they were more ornamental than necessary. Upon this point the learned judge instructed the jury as follows: “ If you believe that it (the counter) was complete without the slabs, and that the slabs were put there more as an ornament than for use, and with no intention to make them part of the freehold, then the plaintiffs could not recover for them; but if, on the other hand, you believe that the slabs were essential to make the counter complete, and were intended to become part of the realty, then the plaintiffs are entitled to a verdict.”

It was contended by the learned counsel for the plaintiff that the above instruction was erroneous, in this, that it gave undue weight to the intention of the defendant; that while, as between landlord and tenant, the intention to annex is the criterion, yet as between vendor and vendee the ruléis not so. As an abstract proposition, this criticism is true to a certain extent. There may be some things which are so essentially a part of the freehold, that as between vendor and vendee the intention of the owner may be of little weight. But this is not such case. The articles themselves were of such an equivocal character as to raise a jury question. Hence the object in placing them there became material, which is all the learned judge intended, and all the jury probably understood by the word “intention.” If the counter was complete without the marble slabs, if they were placed there for the purpose of ornament, they were no more a part of the freehold, and necessary to its enjoyment, than a loose cloth cover would have 'been. In neither case would there have been any attachment to the freehold, and the object and the intention of the owner is to be regarded, in considering the character of the articles. Without going over the learning upon this vexed question, it is believed the foregoing views are fully sustained by the authorities, among which it is sufficient to refer to Hill v. Sewald, 3 P. F. S. 272, and Seeger v. Pettit, 27 Id. 437.

. Judgment affirmed.