Tapley v. Smith

The opinion of the Court was drawn up by Weston C. J. The house was personal property, and the plaintiff’s interest in it did not pass by the defendant’s deed to Johnson. The plaintiff’s title to the house remained unaffected, that deed notwithstanding. This point was decided in the case of Russell v. Richards et al. 1 Fairf. 429, to which we refer. It is true, if the defendant had distinctly undertaken to sell the house, and had received his pay for it, the jj^intiff might have waived the tort, ratified the sale, and maintained assumpsit for the money. But that fact does not appear. He conveyed to Johnson the land, upon which the house stood, as collateral security. That did not carry the plaintiff’s half of the house, as it would have done, if it had been the defendant’s property. Johnson never meddled with the house, and having received his pay, released to Carver the appointee and relative of the defendant. The plaintiff has never been interfered with by" the defendant in the enjoyment of his property, nor has it been occupied under him, nor has Carver, his appointee, ever claimed the house as owner of the land, whether he holds as trustee of the defendant, or in his own right. As to the parol agreement of the defendant, to convey part of the land to the plaintiff, it gave him no legal rights, being void at law under the statute of frauds. If it had appeared, that the defendant had exercised any ownership over the house, the proper remedy of the plaintiff would have been trover. Hilborn v. Brown et al. 3 Fairf. 162. It was there held, that the building, being personal property, did not pass by the deed; but Brown, the grantee, was held liable in trover, not in virtue of his deed, but because he had subsequently converted the building to 1ns own use. The facts did not, in our opinion, justify the Judge in instructing the jury, that there was a sale at the election of the plaintiff. It does not appear, that any sale of his part of the house was contemplated, either by the defendant or his grantee, or by Carver, to whom his grantee released. Exceptions sustained.