Preston v. Briggs

The opinion of the court was delivered by Redfieed, J. The present case having been twice argued at the bar, and the defendant and his counsel having, at different times, urged the strong equity of their case, with great fairness and ingenuity, upon the court, we have been disposed to make the most of it, which the rules of law will allow. The wide range of the argument will preclude our going into the case in detail. There are some few propositions, which we think fully settled by adjudged cases. 1. That as between vendor and vendee of the inheritance in freehold estates, all fixtures pass to the vendee. Colegrave v. Dias Santos, 9 Eng. C. L. 30. This case was decided on full argument in the King’s Bench, before Ch. J. Abbott, (Ld. Tenterden,) and his associates, so late as 1823. It is there laid down, as settled [129] law, that the rule is the same, as to fixtures, between vendor and vendee, that it is between the heir and the executor. The heir, in conveying the freehold without reservation, is presumed to convey it as he receives it. The same rule is recognized, as the settled law upon the subject, by Chancellor Kent, in the latest edition of his Commentaries, vol. 2, pp. 345-6, and the authorities cited and compared in a very elaborate note. Numerous cases in favor of the-proposition, both English and American, are there cited. The same rule, too, obtains between mortgagor, and mortgagee. 2 Kent 346, in note. 2 Stark. Ev. 1246-7, and note. Steward v. Lombe, 5 Eng. C. L. 167. Union Bank v. Emerson, 15 Mass. 159. 2. It seems equally well settled that all fixtures for the time being are a part of the freehold, and that, if any right'to remov'e'them exist in the person erecting them, this must be exercised- during the-term of the tenant, — and if not so done, the right to remove is lost, and trover cannot be maintained for a refusal to give them up ; Ch. J. Gibbs, in Lee v. Risdon, 2 Eng. C. L. 69, cited with approbation in Colegrave v. Dias Santos, before referred to. 3. I take it for granted that if the defendant could not have maintained trover for this building, it will hardly be contended he can justify entering and removing it from the plaintiff’s freehold. The law will always give a party redress by action, where it will justify a forcible entry upon lands, or forcible recaption of personal property for that purpose. 4. It will hardly be contended, I apprehend, that the defendant’s rights in the present case can be superior to David Sears’ rights, from whom they are exclusively derived. To apply these principles and postulates to the facts in the present case, it will be apparent how impossible it is for the defence to prevail. It may well be conceded that, as between Alexander Sears and his father, Alexander had the right, at the time he left the premises, and perhaps within a reasonable time thereafter, which, at farthest, could only extend to a few days, to remove the barn. The case of Barnes v. Barnes, 6 Vt. 388, would seem to justify this conclusion. But even in that case it could not be permitted to Alexander, and those claiming under him, to remove the barn after the lapse of more than six years. The most that could be urged in favor of [130] such a claim is, that the court should treat the right of Alexander, and of the defendant, who stands in his place, as to the ownership of the barn, as personal property. But, in this view, which is most favorable to the defendant, the claim will be barred by the statute of limitations in six years. And, after all right of action is barred by lapse of time, it will hardly do to say that the party may redress himself by force. It is well settled, I take it, at the present day, that the title to personal property may be lost, or gained, by six years’ adverse possession. And the effect of this adverse possession will not be defeated or affected by any notice of an adversary claim. So that, as between the defendant and David Sears, it will be impossible to make good this defence ; 1. Because it was not asserted at the'time Alexander Sears, and those who stand in his place, quit the possession of the barn, and is therefore lost by abandonment, or waiver. 2. Because if the defendant, and those under whom he claims, had been forcibly prevented from asserting their claim and removing the barn at the proper time, and so a right of action had actually qccrued to them, at that time, all right would now be barred by the statute of limitations, and all remedy lost by lapse of time. This is the most favorable view of the case for the defendant. But in truth this case is not so favorable for the defendant as if his claim were made against those-standing in the right of David Sears. The plaintiff claims in right of the mortgagee of David Sears, by deed of mortgage, executed on the 3d day of November, 1825, on which the law day had expired, and suit for foreclosure was actually brought, before this barn was erected. - In this state of facts the barn was erected by permission of the mortgagor. It was erected in the ordinary way, and for the ordinary purposes of agriculture; and being done after the estate had passed to the mortgagee, and pendente lite for an actual foreclosure, the person erecting it did it at his peril. The record of the mortgage deed, and the pendency of the suit for foreclosure, were full notice to Alexander Sears that whatever permanent structures, or even fixtures, he put upon the land by the permission of David Sears would pass to the mortgagee, unless the premises were redeemed. The case in law is the same [131] as if the erections had been made by David Sears. In either view of the ease, the rights of the plaintiff are superior to those of the defendant. Judgment affirmed.