Harris v. Powers

STONE, J. We feel it our duty to refer to what we conceive to be the unnecessary volume of the record in this cause. Some sixteen witnesses were examined; not a question raised on the legality of the evidence; not a charge given or asked on its weight or effect; not an exception reserved, or error assigned, which renders it necessary that we should know what any witness testified, or more than the tendencies of the evidence; yet, the entire testimony given on both sides, filling twenty-two closely written folio pages, is embodied in the bill of exceptions, and brought to this [143] court, thus swelling the record to much more than double its proper dimensions. Such practice necessarily increases the costs of appeal, and consumes the time of the court in reading the record, for no conceivable profit to any one. We earnestly hope we will not find another record liable to the objections here pointed out. It is due to counsel that we should say, this is by no means an exceptional case. Many records come before us containing much useless matter. Sometimes such redundant •matter is inserted because the presiding judge requires it to be done. We know not at whose instance the present record was made so unnecessarily large, and we do not desire to Inflict individual censure. Our remarks are leveled against .an abuse which we would gladly reform.—See Lincoln v. Claftin, 7 Wal. 132. Houses, as a general rule, are part of the freehold, and pass or descend with the land. The prima facie intendment is that they are part of the realty; and if there be no proof to take the case without the general rule, they are part and parcel of the land, and whoever owns the land owns the 'houses standing thereon.—Harkness v. Sears, 26 Ala. 473. But this is not a conclusive presumption. It may be rebutted. In the case of Foster v. Mabe. 4 Ala. 402, Quarles had purchased from Alexander a lot in Eutaw, by oral contract. He entered upon the lot, and built a house upon it. Being unable to pay for the lot, Quarles made another parol .agreement with Alexander, by which it was agreed that the possession of the lot should be restored to Alexander, and Quarles should have the house to do as he pleased with. The house was then levied on and sold by the sheriff as the property of Quarles, and Mabe became the purchaser. After the lien of the execution had attached, under which Mabe purchased, Quarles sold the house to Foster, who removed the lumber of which it was built, and appropriated it to his own use. Mabe then brought his action of detinue against Foster for the recovery of the lumber. The court charged the jury “that if there was an agreement between Quarles ■and Alexander that Quarles was to have the house and dispose of it as his own, this was a severance which made the house a chattel of Quarles’, and it was liable to be levied on and sold under the execution against him.” There was .an exception reserved to this charge, and the case was brought to this court. The judgment of the Circuit Court was .affirmed. This court, among other things, said: “In the case before us, it is not expressly stated that Quarles was to [144] remove the house immediately after the purchase, (for such: we consider it), from Alexander; but the inference is warranted that a removal within a convenient time was contemplated by both parties. The moment that Alexander1 consented that Quarles should do as he pleased with it, the house became a personal chattel, and was consequently subject to levy and sale as the property of Quarles, under the execution.” The court also ruled, that inasmuch as the house was but a chattel, its sale did not fall within the statute of frauds, which requires contracts for the sale of lands to be in writing. The court quoted approvingly Bostwick v. Leach, 3 Day, 476, in which it is said: “When there is a sale of property which would pass by a deed of land as such, without any other description, if it can be separated from the freehold, and by the contract is to be so separated, such contract is not within the statute.”—See Holmes v. Tremper, 20 Johns. 29; 1 Washb. Real Prop. 5. For the conversion of the lumber or material of a house, Avhich has become a chattel under the rules above declared,, the action of trover will lie.—Smith v. Benson, 3 Hill, N. Y. 176; Carpenter v. Lewis, 6 Ala. 682. The Circuit Court gave the following charge, to which plaintiff excepted: “ Powers is not liable on the third count, or for an action on the case, on account of representations or assurances to-Harris of Kennedy’s right to sell said property, unless said 'representations or assurances were in writing, signed by Powers, the party to be charged.” We know no rule of law which requires such representation to be in writing. We have shown above that a contract,, such as Qasl-made in this case, is not required to be in writing. .. An act, to constitute an estoppel in pais, need not be in AAriting. The Circuit Court erred in giving this-charge. The other charges giAren are free from error. Counts in trover and in case may be joined in one action. Dixon v. Barclay, 22 Ala. 370; Wilkinson v. Mosely, 30 Ala. 562. We think if Powers, Avhile in possession and control of the loans in quo, on being appealed to by Harris, who was negotiating with Kennedy for the purchase of the lumber in the house or houses, informed Harris that Kennedy had the right to sell the lumber, or house or houses, and relying on such representation, Harris purchased the house or houses, and paid his money; and on making the attempt, within a reasonable time thereafter, to remove the lumber, Harris was145 denied tbe privilege of doing so by Powers; tben an action or count in case will lie at the suit of Harris against Powers for such breach of duty • arid in such case, an averment of negligence would be out of place and unnecessary; and to maintain the action, malice need not be averred or proved. Hilliard on Rem. 225; 1 Chit. Pl. 135; Mast v. Goodson, 3 Wils. 348. Reversed and remanded.