O'Dougherty v. Felt

By the Court, Mttllin, J. I understand the facts in this case to be, that John Felt, Jr., owned the land on which the saw-mill, "part of the machinery of which is in question in this suit, stood, and on the 1st of July, 1858, he and his wife gave a mortgage thereon to Theodosius O. Fowler and others. This mortgage was foreclosed, and the premises sold and bid in by P. S. Stewart, on the 2d of April, 1864. On the 22d of June, 1864, Stewart contracted to sell said premises to the plaintiff, who thereupon went into possession, and thereafter occupied the same. Before the sale on the judgment of.foreclosure, Felt, the owner in fee, severed the property described in the complaint from the freehold, but left the articles thus severed in and about the mill, where they remained at the time of the sale on the foreclosure, and of the contract to sell to the plaintiff. The property thus severed, and for which this suit is brought, is, the muley-head, dogs, large rag-wheel, iron wheels, a stove and a saw. The severance had been made at different [225] times within the preceding twelve or fourteen years. The mill had not been used in that time. All of "this property was annexed to and formed a part of the realty when the mortgage was given, except the stove and saw. It was said by Johnson, Oh. J., in Murdock v. Gifford, (18 N. Y. 28-34,) that the wheel or engine which furnishes the motive power, aiyl all that part of the gearing and machinery which has special relation to the building with which it is connected, would belong to the freehold. The conclusion of Cowen, J., in Walker v. Sherman, (20 Wend. 636,) upon a review of all the cases, both English and American, was, that as a general rule, in order to come within the operation of a deed conveying the freehold, whether by metes and bounds, of a plantation, farm or lot &c., or in terms demoting a mill or factory &c., nothing of a nature personal in itself will pass, unless it be brought within the denomination of a fixture, as being in some way permanently, at least habitually, attached to the land or some building on it. The chancellor held, in House v. House, (10 Paige, 158,) that the water-wheel, mill-stones, running gear and bolting apparatus of a grist and flouring mill, and other fixtures of the same character, are constituent parts of the mill, and descend to the heirs as real property. (Buckley v. Buckley, 11 Barb. 43. Vanderpoel v. Van Allen, 10 id. 157.) It is not material to inquire, in this case, whether a conveyance of a mill or factory, eo nomine, will convey machinery and other personal property which would not pass by conveyance by metes and bounds; as all the property in controversy here is real, except the stove and saw, and the latter articles would not pass under any circumstances, unless it might be the saw in its place in the mill. What was the effect of the severance of the wheels &c. by Felt before the sale on foreclosure % It was held in Mooers v. Wait, (3 Wend. 104,) that a purchaser of wild lands to be thereafter paid for, and deed [226] given, is not at liberty to ont a piece of timber when the land on which it grows is not required for purposes of cultivation; and that on severance the timber becomes the personal property of the owner in fee, and trover may be maintained therefor against one in possession, though he be a bona fide purchaser under the occupant. The case of Morgan v. Varick, (8 Wend. 587,) is still more decisive of the question. The plaintiff owned the premises in question, and on them was a stone building which, at the time the action (ejectment) was brought, contained four boilers and other machinery and apparatus for propelling a grist-mill. After suit brought, the defendant sold the boilers &c. to Leavenworth, who removed them at the request of the defendant. The plaintiff having established his right to recover the land, claimed to recover also for the value of the property thus removed, and it was held that he might. The court say the steam engine, before severance, was part of the real estate; when severed it became the personal property of the plaintiff. (Farran v. Thompson, (5 B. & Ald. 826. Amos & Fer. on Fix. 236, &c.) By virtue of the mortgage, the mortgagee acquired a lien on all that formed a part of the realty at the time it was given, and when he foreclosed, he had a right of action for the property severed before the foreclosure. (Southworth v. Van Pelt, 3 Barb. 347. Van Pelt v. McGraw, 4 N. Y. 110.) It is not material whether the remedy of the mortgagee is trover for the property severed, or an action for damages by reason of the severance. In either case, the property having ceased to be a part of the realty, a conveyance of the premises to which it was attached will not carry the articles severed. Unless personal property is mentioned in a deed of land, it will not, of course, pass. So that, on the sale by Stewart to the plaintiff, the property severed did not pass, even if Stewart be [227] came owner of it by virtue of Ms purchase on the foreclosure sale. [Onondaga General Term, January 2, 1866. Morgan, Mullin and Bacon, Justices.] There is no evidence that anytMng but the land was sold, and that did not embrace the property in question. The judgment must, therefore, be affirmed.