Dolliver v. Ela

Morton, J. It has been decided by this court, in several cases, that, if a man puts a house or other building upon land of another, under an agreement with the owner of the land that he may remove it, the building remains his personal property. He may lose his right to it if the land is sold to an innocent purchaser without notice of the agreement. He cannot set up his title against such innocent purchaser, whom he has misled by permitting the building to be attached to and apparently a part of the realty bought by him. But, as against the original owner of the land and all persons taking under him with notice, the building never becomes a part of the realty, but remains personal property, and he, or a purchaser from him, may maintain replevin or trover to recover it or its value, even while it remains [560] upon the land and apparently a part of the realty. Hunt v. Bay State Iron Co. 97 Mass. 279. Curtis v. Riddle, 7 Allen, 185. Hinckley v. Baxter, 13 Allen, 139. Brooks v. Prescott, 114 Mass. 392. Hartwell v. Kelly, 117 Mass. 235. In the case at bar, it is found as a fact, that Ashworth put the buildings in controversy upon the land of the defendant under an agreement “ that they were not to be the property of the defendant, but that he, Ashworth, should have the right to remove them at any time.” By virtue of this agreement, they never became a part of the defendant’s real estate, but remained the personal property of Ashworth. He had the right to sell them to the plaintiff’s intestate, and the plaintiff can maintain this action of tort in the nature of trover against the defendant if he converted them to his own use. The question whether, upon the facts proved, the defendant was guilty of a conversion, is not free from difficulty. To understand it, it is necessary to refer to the facts which show the relations between the parties. The defendant had agreed to give Ashworth a deed of the land, upon his paying a part of the price, and giving a mortgage for the balance. Ashworth was thus the equitable and beneficial owner of the land, and he was in the occupation of it under an agreement to pay the defendant a sum equal to the interest upon the price. While thus in possession, he sold the buildings by a bill of sale, not recorded, to the plaintiff’s intestate. Afterwards Ashworth requested the defendant to convey the land to one King, which the defendant did by a warranty deed in the common form, which made no mention of the buildings. At the same time, the defendant’s agreement to convey to Ashworth was given up, and Ashworth gave to the defendant a release of the land “ with all the privileges and appurtenances thereto belonging.” At the time of this transaction, the defendant did not know of the sale to the plaintiff’s intestate. But he knew that, by virtue of the agreement he had made, the buildings remained personal property, and he is presumed in law to have known that the effect of his sale of the land to King would be to give him a title to the buildings, and thus deprive the owner of all right to them. This sale to King was the exercise of dominion over the property inconsistent with the right of the plaintiff’s intestate, who was [561] the owner. It is similar to the common case where a man innocently sells and appropriates to his own use the property of another, in ignorance of the ownership. Such appropriation, though not made with any intent to wrong the owner, is in law a conversion. We are, therefore, of opinion, that the rulings at the trial in the Superior Court were correct. Judgment for the plaintiff.