Congregational Society v. Fleming

Wright, J. When a party has, by his own tortious act, severed an article from the realty, which but for such severance would be real property, replevin will lie for its recovery. Such act, however, will not have the effect of making the property liable to execution, if it was before exempt. The only question in this case, then, is whether the property in controversy was, at the time of the seizure by defendant, exempt from execution. And it is admitted that it was so exempt, if it was so attached as to constitute and become a part of the realty. The general rule is as stated by appellant and found in Am. & Fer. on Fixt. 3, “that to constitute a fixture in its strict sense, there must be a substantial and permanent annexation to the freehold itself, or to something connected with the freehold.” And exceptions contravening the spirit and policy of this rule, should not be favored. • The character of the article, that is, whether it is a fixture or personal 536 property, must, however, very often be determined from a knowledge of the purpose designed in its erection or connection. As is said in Snedeker v. Warring, 2 Ker. 170, the connection of the article “ with the land is looked at principally for the purpose of ascertaining whether the intent was that it should retain its original chattel character, or whether it was designed to make it a permanent accession to the land.” Thus, while a bell, belonging to a religious society, if left upon the ground or placed in the building, without use, might in no sense be so far of the realty as to be exempt from execution as a part thereof, yet if placed in a frame on the church lot, and used, it would be exempt, though the posts of the frame were not let into the ground. The placing it in this position and this use, indicate unmistakably the intention of the society to affix it to the realty, to render it a permanent accession to the land; to appropriate to the purpose designed, and to divest it of its original chattel character. And though it be admitted that the mere intent to thus convert it without some act, would not be sufficient, yet the act and use indicate the intention, and have the effect of changing the character. In our opinion the verdict was warranted by the testimony, and there was no error in overruling the motion for a new trial.