Titus v. Ginheimer

Walker, J. The various legal propositions involved in this record were discussed and determined in the case of Titus v. Mabee, 25 Ill. 257, at the present term, and it is therefore deemed unnecessary to again discuss them here. It was there held that railroad cars and locomotives were, when on the road for use, prima facie a part of the realty, and could not be severed and sold by the officer under an execution. This bill alleges, that the sheriff was threatening to seize and sell the cars, locomotives and other property of the road under an execution in his hands, and prays that he and the plaintiffs in execution may be restrained. Also that a constable, under an execution from a justice of the peace, had levied upon a tank-house belonging to the road, and was proceeding to sell it. All buildings and improvements of a permanent character placed upon or annexed to the freehold, usually become a part of it, and can only be separated from it by the owner. That a railroad tank-house is of that character, is unquestionably true, and as such is not subject to levy and sale by a constable on an execution from a justice of the peace. His authority is only to seize and sell goods and chattels, and when he attempts to sell real estate or permanent fixtures, he acts in excess of his authority, and may be restrained by injunction. The court below erred in sustaining the demurrer and dismissing the bill. Until the evidence was heard, the presumption is, that the tank-house, the cars and locomotives were annexed to, and formed a part of the real estate of the road. If after hearing the evidence it had appeared that they had been, and then were severed from the track and premises of the road, the bill should have been dismissed. The decree of the court below dismissing the bill, is reversed, and the injunction restraining the sale of the cars, locomotives and tank-houses, is continued until a hearing, and dissolved as to other property, and the cause is remanded. Decree reversed.