Lackas v. Bahl

Lyon, J. If any of the articles taken from the blacksmith shop by the defendants were fixtures, the title to which would pass to the plaintiff by the sheriff’s deed under the foreclosure sale, it is not denied that the removal of such property was waste, or that this action may be maintained by the plaintiff to recover damages therefor. Whether such articles were fixtures, that is to say, a part of the freehold, is the main question argued by the respective counsel, and the only one which we have found it necessary to consider. It is not deemed advisable to go into an elaborate discussion of the law on this subject, because, as the proofs now stand, we are satisfied that, under all the authorities, some of the articles removed from the shop by the defendants were part and parcel of the freehold, and that the removal of them was waste. This is presumably true of the door-locks, of the iron fixtures imbedded in the masonry of the forge chimney, and [55] perhaps, also, of the ox-frame. The breaking of the chimney to remove such irons was also an act of waste. For these reasons, the nonsuit was improperly granted, and the judgment must be reversed. On the testimony before us, we purposely abstain from determining any more definitely the character of the alleged fixtures, or the rights of the respective parties therein. The testimony is quite meagre, and in some respects unsatisfactory, and those questions can be better considered and determined after the cause shall have been fully tried. By the Court.— Judgment reversed, and cause remanded for a new trial.