Davis v. Emery

AppletoN, G. J. This is an action of trover to recover the value of a building to which the plaintiff claims title by a bill of sale in the following words : “ Newpield, Nov. 6,1865. $40.00 J. B. .Davis bought of Elizabeth Emery one building 23 feet wide and 50 feet long, now standing west of my house and barn. Said building is to be moved off from where it now stands by the first of May next. Price forty dollars. Received pay. Elizabeth Emeey.” The building was not removed within the time specified. Upon the foregoing writing the justice presiding instructed the jury that if they found that the term limited in said writing was not extended prior to the first of May, A. d. 1866, by the defendant, that the title to the building ivould ^revest in the defendant, and that the plaintiff would not have a right to go on and remove the same. The plaintiff bought the barn and paid for it. As between the parties to this suit it must be deemed personal property. The defendant having sold it as such and received the price agreed upon cannot claim it as a part of the realty. It stands precisely as if it had been a sale of a cart or a wagon, which was to be stored by the seller for a specific time, and which was not removed by the buyer within that time. The title to the article sold and paid for would not be changed by the neglect of the purchaser to remove it at the stipulated day. The phrase “ said building is to be moved off from where it now [142] stands by the first of May next ” being included in the bill of sale to the purchaser, he must be regarded as having assented thereto and thereby impliedly to have agreed to remove it in accordance with this provision, and is liable in damages for its non-removal within the time specified. Newell v. Hill, 2 Met. 180; Pike v. Brown, 7 Cush. 133 ; Maine v. Cumston, 98 Mass. 317. There is nothing in the language indicating that' the building would be forfeited and the title revest in the seller if a removal was not made by the first day of May then next.- If it is to be regarded as a license within which time the purchaser might remove the building, still the neglect to remove would not constitute a forfeiture. The purchaser might be liable in trespass for all damage done by him to the owner of the land in removing the building, but not for the value of the property removed. Dame v. Dame, 38 N. H. 429. The title to the property sold was in the purchaser. Nelson v. Nelson, 6 Gray, 385 ; Nettleton v. Sikes, 8 Met. 34. The law relating to fixtures, whether as between grantor and grantee, mortgager and mortgagee, or landlord and tenant, has no bearing upon the question under consideration. As between the buyer and seller the building was a personal chattel, which the purchaser was to remove in a given time, and until that time it was to remain on the seller’s land. It was the simple case of a merchant storing goods for a limited time for the purchaser, who had paid the price therefor. The cases cited by the counsel for the defendant are inapplicable. In Pease v. Gibson, 6 Greenl. 81, the sale was not of a specific article but only of so much timber as the vendee might take off within the time limited in his contract. To the same effect are the cases of Reed v. Merrifield, 10 Met. 155, and Howard v. Lincoln, 13 Maine, 122. In Vincent v. Cornell, 13 Pick. 294, oxen were sold, the title to be perfect upon payment within a stipulated time, and the price not being paid, the title was held to remain in the vendor. So, the case of Fairbanks v. Phelps, 22 Pick. 535, was one of a condition [143] al sale, the title to become perfect in the vendee when the purchase-money was paid. But in this case there was no sale on condition and there was nothing due the seller, the price having been paid at the time of the purchase. Exceptions sustained. CuttiNg, Kent, DickeRSon, and Tapley, JJ., concurred.