Rogers v. Gilinger

The opinion of the court was delivered by

Strong, J.

— The owner of a lot of ground upon which had been erected a large frame building, conveyed the property to assignees in trust for the benefit of creditors. Prior to the assignment, a judgment had been recovered against the assignor, which was a lien upon the real estate conveyed. Two days after the~ assignment had been made, a storm of wind demolished the building, leaving the foundation and floors nearly entire, but breaking the superstructure so that its materials could not be replaced, or used in the construction of a similar building. While in this condition, the whole was levied upon and sold under executions founded upon the judgment against the assignor, and the voluntary assignees now claim that the ruins of the frame building did not pass at the sheriff’s sale; that they were personal property, and that the purchaser under the venditioni exponas having used them, is respom sible to the assignees in an action of trover.

It may be premised that the assignees stand precisely in the shoes of Beek the first owner. If he could not assert against the purchaser at sheriff’s sale, supposing no assignment had been made, that the fragments of the building were personalty, neither can they. It may also be remarked that the purchaser under the judgment has obtained all upon which the judgment was a lien.

Now clearly Beek, the first owner, could not have torn down the building, and converted the materials from realty into personalty, without diminishing the security of the judgment, impairing its lien, and wronging the judgment-creditor. Though the statutory writ of estrepement might not have been demandable until after levy and condemnation of the property, yet equity would have enjoined against any such wrong. The building, as such, constituted a large part of the creditor’s security, and his lien embraced every board and rafter which made a constituent part of the structure. Nor were the rights of the assignees any more extensive. They were mere volunteers. They took the property as land only, encumbered as a whole, and in every part, by the lien of the judgment. Their title was in one sense subordinate to the right of the judgment-creditor to take all which passed to them in satisfaction of his debt.

In Herlakenden’s Case, 4 Rep. 62 a, it was resolved that if a lessee pulls down a house, the lessor may take the timber as a thing which was parcel of his inheritance. So in Bowles’s Case, 11 Rep. 81 b, it was held that if the lessee cut down timber, the lessor may take it. Though severed, it is a parcel of the inheritance.

Nor will the tortious act of a stranger be allowed to injure the reversion: 2 M. & S. 494; 1 Term Rep. 55; Garth v. Sir John Cotton, 1 Vesey, Sr. 524. These principles are reasserted in Shult v. Barker, 12 S. & R. 272; 7 Conn. 232; 3 Wendell 104. Nor will a severance by the owner of that which was a part of the realty, unless the severance be with the intent to change the character of the thing severed, and convert it into personalty, prevent its passing with the land to a grantee. Thus it was held in Goodrich v. Jones, 2 Hill 142, that fencing materials on a farm which have been used as part of the fences, but are temporarily detached without any intent to divert them from their use as such, are a part of the freehold, and as such pass by a conveyance of the farm to a purchaser.

Is the rule different when the severance occurs not by a tortious act, nor by a rightful exercise of proprietorship, without any intent to divert the thing severed from its original use, but by the act of God ? The act of God, it is said, shall prejudice no one, 4 Co. 86 5, yet the maxim is not true if a tempest be permitted to take away the security of a lien-creditor, and transfer that which was his to the debtor or the debtor’s assignees. If trees are prostrated “per vim venti,” they belong to the owner of the inheritance, not to the lessee: Herlakenden’s Case, ut supra. He takes them as a part of the realty. True, he may elect to consider them as personalty, and this he does when he brings trover for their conversion, but until such election they belong to him as a parcel of the inheritance. If a tenant hold “ without impeachment of waste,” the property in the timber is in him; but if there be no such clause in his lease, and he remove from the land trees blown down, such removal is waste. That could not however be, unless, notwithstanding the severance, they continue part of the realty, for waste is an injury to the realty.

I am aware that it is said to have been held that if an apple-tree be blown down, and the tenant cut it, it is no waste: 2 Rolle Abr. 820. That may well be, for the falling of the tree is through the act of God, not of the tenant, and the cutting of the fallen timber is but an exercise of the tenant’s right to estovers; but if he remove from the land fallen timber, it has been ruled to be waste.

What then is the criterion by which we are to determine whether that which was once a part of the realty has become personalty on being detached ? Not capability of restoration to the former connexion with the freehold, as is contended, for the tree prostrated by the tempest is incapable of reannexation to the soil, and yet rremains realty. The true rule would rather seem to be, that which was real shall continue real until the owner of the freehold shall by his election give it a different character. In Shepherd’s Touchstone 90, it is laid down that “ that which is parcel, or of the essence of the thing, although at the time of the grant it be actually severed from it, does pass by a grant of the thing itself. And therefore by the grant of a mill, the mill-stone doth pass, although at the time of the grant it be actually severed from the mill. So by the grant of a house, the doors, windows, locks, and keys do pass as parcel thereof, although at the time of the grant they be actually severed from it.”

It must be admitted that the case before us is one almost of the first impression. Very little assistance can be derived from past judicial decision. There is supposed to be some analogy between the character of these fragments of the building and that of a displaced fixture. The analogy, however, if any, is very slight. These broken materials never were fixtures, though they had been fixed to the land. They had been as much land as the soil on which they rested. Severance had never been contemplated. One of the best definitions of fixtures is that found in Shean v. Rickie, 5 Mees. & W. 171. They are those personal chattels which have been annexed to the freehold, but which are removable at the will of the person who has annexed them, or his personal representatives, though the property in the freehold may have passed to other persons. Yet, even fixtures, which but imperfectly partake of the character of realty, go to the purchaser at sheriff’s sale of the land, though they have been severed tortiously, or by the act of God. Thus where a copper-kettle had been detached from its site in a brewery by one not the owner, had remained detached for a long period, and while thus severed, had been pledged by the personal representatives of the owner, it was still held to have passed by a sheriff’s sale of the brewery under a mechanics’ lien, filed before the severance: Gray v. Holdship, 17 S. & R. 413.

Without however discussing the question further, it will' be perceived that in our opinion the broken materials of the fallen building must be considered as a parcel of the realty as between the assignees and the purchaser at sheriff’s sale, and consequently that they passed by the sale to the purchaser.

The judgment is affirmed.