Gardner v. Finley

By the Court, T. R. Strong, J. According to the recent decision of the court of appeals in Beal v. Finch, (1 Kernan, 128,) each of the defendants was a competent witness for the other, and when offered generally should have been received. It is quite clear that the admission of evidence of the expense of replacing the property in the mill was error. The evidence must have been allowed upon the idea that the severance of the property from the building was part of the cause of action, and that it was proper to consider the expense of replacing it, in ascertaining the damages occasioned by that act. But this view was a mistaken one. Although the plaintiff claims title [320] to the property as having by annexation become part of the real estate, and as such subject to his mortgage, and as being therefore embraced in his purchase of the mortgaged premises at the sale in the- foreclosure suit, he in this action treats the property as merely personal, and only complains of an injury in respect to it as such. His position is that the property belonged to him as part of the realty; that by its severance and removal it became personal; that the defendants wrongfully detain it as such; and he asks that he may have possession of the property, and damages for the detention. The cause of action is the wrongful detention after the property became personal. Ho complaint is made of the act of severance and removal, whereby the character of the property was changed from real to personal; nor are any damages claimed for that act. The plaintiff might have made that the subject of an action, but it would have been an action analogous to the old action of trespass for an injury to real estatea very different action from the present. The evidence in question was acted upon; the expense was allowed by the jury as part of the damages. I am inclined to think it was properly held at the trial, that the plaintiff acquired title to the property, as part of the real estate as to him, by the purchase of the real estate at the foreclosure sale. The principle of the cases of Winslow v. The Merchants’ Ins. Co. (4 Metcalf, 306,) and Butler v. Page, (7 id. 40,) appears to be directly applicable. It is, that there is no occasion for, and therefore is no relaxation as between a mortgagor who has erected fixtures on the land, subsequent to the mortgage, and the mortgagee, of the general rule of the common law, that whatever is" fixed to the freehold becomes thereby part of it; the same rule which prevails between vendor and vendee. There is one feature in the present case not existing in those, but it does not, as I think, affect the application of the principle. The mortgagor in this case executed a quitclaim deed of the land before the property in dispute was placed in the mill; but it was done under an agreement by which he was interested to enhance the value of the land, and make the avails of the sale of it as much as possible. .1 think [321] the property was so attached to the building as to bring it within the general rule referred to. [Monroe General Term, March 5, 1855. Johnson, Welles and T. R. Strong, Justices.] There is another class of cases which appear to me decisive in support of the plaintiff’s title. In Lane v. King, (8 Wend. 584,) the mortgagee who had purchased the premises at the sale in a foreclosure suit, was held entitled, as against the tenant of the mortgagor, under a lease subsequent to the mortgage, to crops of grain growing on the mortgaged premises at the time of the sale. (See also Aldrich v. Reynolds, 1 Barb. Ch. Rep. 613; Shepard v. Philbrick, 2 Denio, 174; Gillett v. Balcom, 6 Barb. 370.) The property became personal by the severance. (Morgan v. Varick, 8 Wend. 587, and cases cited.) And the evidence of a wrongful detention by the defendants jointly, was abundant. A new trial must be granted, with costs to abide the event