Feimster v. . Johnson

Settle, J. The still in controversy was hired by Long and Johnson from the owner Guy, for the purpose of distilling whiskey during the Spring of 1866. This was a contract of bailment, and gave the bailee the possession and temporary use of the still, but did not divest the owner of his title, or prevent him from selling the property. In a short time after this transaction, Guy sold the still, for a valuable consideration, to the plaintiff. This sale transferred the title to the plaintiff, and authorized him to take possession of. the still, when the temporary bailment was ended. The plaintiff, soon after his purchase, notified Long of the feet, who made no denial of his claim. In April 1866, the still was levied upon by the defendant Hall, at the instance of the defendant Johnson, and sold at public sale to the defendant Johnson, after the time of the bailment had expired; the plaintiff being present, and forbidding the sale. This sale was an unlawful conversion of the property of the plaintiff, and gave him a good cause of action against the defendants. It was insisted by the defendant, that, as the still' was encased in masonry on the land of Long, it was a fixture; and the sale by Guy to the plaintiff' was void, because the contract was not in writing, as required by the Statute of frauds. The doctrine of fixtures has no application to the case. Long, the owner of the land upon which the still was placed, makes no such claim; but if he did, it could not be maintained. A and B rent the still of C, to be used for a short time; they set it up on the land of A, and then B turns around and says that it is now affixed to the freehold of A and therefore 0 has lost all of his interest therein, and that he, who owns neither land nor still, can assert it. This carries the doctrine of fixtures to a greater extent than has ever been claimed for it before. AsA general rule, whatever isat- *261 tached to land is understood to be a part of the realty; but as this depends, to some extent, upon circumstances, the rights involved must always be subject to explanation by evidence. Whether a thing attached to land he a fixture or chattel personal, depends upon the agreement of the parties, express or implied. Naylor v. Collins, 1 Taunt. 19; Pervy v. Brown, 2 Stark. 403; Wood v. Hewitt, 55 E. C. L. 913. A building, or other fixture which is ordinarily a part of the realty, is held to be personal property when placed on the land of another by contract or consent of the owner: 1 Greenl. Cruise 46. There certainly was an understanding between the lessor and the lessee, that the still should not become a part of the realty, butshouldretainitscharacteraspersonalty, andremain the property of the lessor. The first position of the defendant is only surpassed in boldness by his second, which is, that the still was not the subjectof sale by a constable. It is difficult to treat the matter gravely, when we remember that the still was levied on by the defendant Hall, at the instance of the defendant Johnson, and that the defendant Johnson became the purchaser at the sale, when the plaintiff was present, doing all in his power to prevent it. There is no error in the charge of his Honor, and the judgment must be affirmed. Pee CtrElAJvr. Judgment affirmed.