Clayton v. Phillipp , 1913 Tex. App. LEXIS 1365 ( 1913 )

CONNER; C. J.

Appellee recovered a judgment for the sum of $25 as rent of a certain house located upon a lot owned by appellant, and for the further sum of $100 for the final conversion of said house.

[1-3] Numerous assignments of error have been presented, but the greater number in one form or another present the single question of whether the house for the conversion of which appellee sued was personal property, or part of the realty upon which it was located. It is undisputed that appellant is the owner of the lot; he having purchased the same from C. H. Mathis early in the year of 1911. It is further undisputed that Mathis, during a continuance of ownership for several years, recognized the house as belonging to appellee, Phillipp, paying appellee rent for the use of the same, and that at and before appellant’s purchase, he was fully notified that appellee was the owner of the house, and that the conveyance of the house was not intended by the execution of the deed to him. While it is the general rule that a house attached to realty, as the one in question was, constitutes part of such realty, yet such rule is not without exception. It is equally well settled in such case that if, at the time of the erection of the house, it was understood and agreed that it might be severed therefrom and removed, its character of personal property remains as distinct as that of the material out of which it was erected. The long-continued recognition of the ownership of the house involved in this controversy by Mathis, certainly as between Mathis and appellee, constituted the house personal property, and susceptible of separation and removal from the realty at the will or upon agreement of the parties, and if necessary to this conclusion, it will be presumed that at the time of the original location of the house upon the lot, it was not intended that ‘it should become a fixture, but that, on the contrary, it was to retain the character of personal property. Appellant Clayton having, as stated, full notice of ap-pellee’s ownership and of the character of the house, can have no greater right than his vendor. The county court, therefore, was not without jurisdiction over the subject-matter of the controversy, and all other assignments involving the question stated are accordingly overruled.

[4] It seems clear that the testimony of witnesses, to the effect that during appellant’s negotiations for the purchase of the lot upon which appellee’s house was located he was informed that appellee was the owner of. the house, is not subject to the objection that it was inadmissible because it contradicted the legal effect of appellant’s deed. Appellee was not a party to that deed, and he was not in any way bound thereby.

[5] The objection, however, that the verdict and judgment is excessive on the issue of the house’s value we think is well taken. It is perfectly apparent from the testimony that, aside from its fixed location on Pine street, the house was not worth to exceed $50; this being the highest estimate. The value of the house is not to be enhanced by a consideration of a right for its continuance where located; for appellee had no such right. Appellee’s true measure of damage was the market value, if any, or the actual value in the absence of a market value, of the house at the time and place and in the condition it was when converted, excluding altogether any right on appellee’s part for a continuance of such location against the lot owner’s consent. The error noted, however, will not require a reversal in event of appellee’s willingness to remit the excess suggested. It will, accordingly, be ordered that the judgment be reversed, and the cause remanded, unless appellee within 20 days shall file a remittitur of $50, in which event it will be affirmed for the remainder; no other error having been developed by a consideration of the record.