Peck v. Batchelder

The opinion of the court was delivered by "Wilson, J. The only question in this case is, whether the title to the property, described in the plaintiff’s declaration, passed to him by the defendant’s deed of April 2.9th, 1865. In order to entitle the plaintiff to recover, it was incumbent on him to show that the windows or blinds had become and were a part of the building conveyed to him by the defendant. The report of the referee finds that the blinds were never in any manner attached to the building or windows, or even fitted to them. In regard to the windows, it appears they were made for the house, fitted to its window casings, and set up on the inside of the windows belonging to the house, where they remained a short time, and previous to the sale of the house, the defendant took them down and put them away. They were never nailed or fastened in, and no preparations had been made to fasten them to the house. It appears the defendant owned the blinds and windows in question, at the time he conveyed the house to the plaintiff; and if they had become, and were at that time, a part of the house conveyed, the fact that the defendant secreted them previous to the conveyance, or that the plaintiff had, at the time of the conveyance, no knowledge of their existence, would not defeat the plaintiff’s right to the property. In the construction of a building, its doors, windows, blinds, shutters, etc., become a part of the building, and the manner of annexation is of no particular importance. There must be actual or constructive annexation in order to make them a part'of the building. At the time the defendant conveyed to the plaintiff, the building had in it all the windows it was constructed with or for, and the mere fact that the defendant had made some [236] sash, painted' them, and set glass in them, intending to use them at some future time, in the construction of double windows for the house, does not constitute even constructive annexation. In order to make such windows a part of the realty, they must have been so annexed or attached to, or used upon the building, as to indicate that the owner intended, by such annexation or use, to make them a part of the building. The window frames and casings of the house, were not constructed for double windows, and the referee has not found that the defendant had prepared even the ordinary stops by which double windows could have been permanently attached to the house, or securely kept in place, It is evident, from the manner in which these windows were put in, that if they had been taken out and put back a few times, they would have become loose and have fallen off unless they had been in some way fastened to the building. The very manner in which the defendant put these windows in, and temporarily used them, shows that he did not intend, by such act or use, to make them a part of the building. The. referee finds the defendant did not intend these windows or blinds should pass with the house. The plaintiff, in the purchase of the house, was not deceived in respect to the windows or blinds. There was nothing upon the house or windows attached to it, indicating that double windows or blinds had been attached to the building, or that such windows or blinds belonged to the house. The plaintiff, at the time of the conveyance, had no knowledge or information that double windows or blinds had been attached to the building, or made for that purpose; there is, therefore, no ground to claim that the price paid for the property was in any way affected in faith of double windows or blinds. ¥e are of opinion that the windows and blinds for which the plaintiff claims to recover, were never so attached to the house as to become a part of the realty, and they did not pass to the plaintiff by the deed of the house. The result is, the judgment of the county court is affirmed.