Fuller v. Tabor

Bice, J. — The evidence in this case tended to show that the house in controversy had been placed upon the land of one Hoxie, without his knowledge or consent, by Brown, under whom the defendant claims title. Hoxie, who was a witness, testified, “ I did not know the house was there till some time after it was put there; can’t say how long; the house was underpinned; I gave no consent for it to be put there. As soon as I saw it, I notified Brown that the land was mine. He said he bought it of Reed. I told him Reed owned only the eight rod strip east of it. • Brown agreed to buy the land of me, and I agreed to sell it to him for three dollars; but he died without completing the trade.” The Court were requested to instruct the jury, “ that if the building sued for had been attached to the land of Hoxie, or any other person, other than Brown, by being underpinned, without the consent of the owner of the land, prior to the alleged conversion, and remained so attached at the commencement of this suit, then this action cannot be maintained.” This instruction was given. But the Judge further instructed the jury, that if the building was put upon Hoxie’s land by Brown, without his knowledge or consent, but when Hoxie was informed that the house was thus put upon his land, ho consented that it might remain, it would be personal property, and this form of action might be maintained. It is a rule, that things personal in their nature, but fitted •and prepared to be used with real estate, and essential to its beneficial enjoyment, having been fixed to the realty, or used with it, and continuing to be so used, become parts of [522] tbe land, accessione et destinations, and pass with it by deed-of conveyance. 1 Greenl. Cruise, 46. But an exception to this rule is admitted, when the parties previous to the annexation of things to the freehold have mutually agreed, that they shall not become parts of the realty, but shall remain the property of the person annexing them, or may be removed by him. Ibid. There can be no doubt that one may own a building standing on the land of another, with his consent, and may dispose of it, and it will be liable to attachment, the owner of the land interposing no claim. Ashmun v. Williams & al. 8 Pick. 402. The subsequent assent and ratification of Hoxie, with a full knowledge of all the facts, was equivalent to a prior agreement, and relates back to the time the house was put upon his land. It would be absurd to hold that a man is compelled to become the owner of a house, against his will, simply because his neighbor, acting under a misapprehension as to the title, had placed it upon his land without his knowledge and consent. Yet such would be the result of the doctrine contended for by the defendant. The instruction was obviously right. The instruction upon the point in relation to conversion is in strict accordance with well established legal principles, and we think the evidence reported authorized the finding of the jury. Exceptions and motion overruled. Judgment on the verdict. Tenney, J., did not sit in this case.