Smith v. Benson

By the Court, Cowen, J.

The judge was clearly right with regard to the title of the plaintiffs; and the only question calling for consideration is, whether the building was a fixture in that sense which precludes the right to bring trover for it.

The building was slightly fixed to the freehold; and all parties—the owners of the lot on which it was built—the builder himself—Ladd the mortgagor who succeeded him. and the plaintiffs, the mortgagees—regarded it as the subject of removal at any time: and when the mortgage came to be given by Ladd to the plaintiff, they treated it as a mere moveable thing, on a footing with other personal property. The defendants themselves took from Ladd; they stand in his shoes, and the case is the same as if they had given the mortgage themselves. Thus, both these parties agreed to consider it as in a state of severance from the freehold; and no one had ever thought of its being so fixed as to be irremoveable. Prima facie, such a building would be a fixture, and would not be removeable. The legal effect of putting it on another’s land, would be to make it a part of the freehold. But the parties concerned may control the legal effect of any transaction between them, by an express agreement. They have, in effect, stipulated, that the placing of this building on the ground of Brackett and Wood, should work nothing more towards changing its nature than if it had been the loose timber of the house, instead of the house itself. The law often implies an agreement of nearly the same character from the relation of lessor and lessee, or tenant and remainderman. And, surely, the parties may, by express agreement, do the same thing, and even more. If they .agree, in terms, that a dwelling house shall, as between them, be considered strictly a personal chattel, it takes that character. And so of any equivalent agreement or understanding, which we think existed in this case between all the parties concerned.

The learned judge was. right at the circuit; and the motion for a new trial should be denied.

New trial denied.