District Township v. Moorehead

Rothkock, J. I. The plaintiff makes no claim to an interest in the land, but insists that the building of the school- 1 statute of feTse-s:con-01 tract. h°use 011 defendant’s land, under the agreement set UP ™ ^ie petition, was a mere oral license* and the house is not a part of the realty, but a chattel, subject to be removed at the will of the plaintiff. The defendant insists that the house is a part of the real estate, not the subject of replevin, and that the contract set out in the petition is'an oral lease good for only one year. Under the allegations of this petition it is not necessary to determine whether this be a mere license or an oral lease. If it be a mere license it is not within the statute of frauds. Kent’s Commentaries, Yol. 3, 557, 558, and authorities there cited. The fourth sub-division of Section 4007, Revision, under which this contract was made, provides that evidence of contracts for the creation or transfer of any interest in lands, excepting leases for a term not exceeding one year, must be in writing, signed by the party to be charged. Section 4008 provides that the provisions of the fourth sub-division of the preceding section do not apply “when the purchase money or any portion thereof has been received by the vendor, or when the vendee with the actual or implied consent of the vendor has tahen and held possession thereof under and by virtue ^of the contract.” It will thus be seen that as possession was taken under the agreement with the consent of the defendant, the case as made in the petition is not within the statute of frauds, even conceding that the contract created an interest in lands. 2 ted'onifndof another. II. The petition avers that the plaintiff was to have the use of the necessary land so long as the district township “let the school-house remain on the land.” This right Of removal fixes the character of the. property as between these parties. Although it is a general principle of law that a building permanently annexed to the [469] freehold becomes a part of it, and is real estate; yet if it is erected by the builder with his own money, and for his own exclusive use, as disconnected from the use of the land, and with an agreement to that effect between the owner of the land and the builder, it will, as between the parties, be considered personal property. Curtis v. Hoyt, 19 Conn., 154; Fuller v. Taylor, 39 Maine, 519; Hill on Fixtures, 18; 2 American Leading Cases, 693, et seg.; and see Wilgus & Ewing v. Gettings & Giddings, 21 Iowa, 177. Especially is this true where as in the case before us the very contract by which the building was erected contemplated its removal. 3 ___. replevin. III. The remaining question is, will an action in the nature of replevin lie for the recovery of the possession of the house. We have seen that, as between these parties under this contract, the house in question is a mere chattel. It may remain on the land until the contract shall be terminated by its removal or in some other proper manner, and it will still be a chattel. The action for the recovery of specific personal property provided by the Code, Sec. 3225, includes all personal property as distinguished from real estate. The petition in this case contains all the allegations necessary under said section and those following, providing, for the recovery of personal property, and in our opinion the demurrer ■should have been overruled. It is no objection to the form of this action that the property is ponderous and incapable of manual delivery to the plaintiff, in execution of the writ. The lfiw determines what is a sufficient delivery of property of this character as between these parties. It being personal property, the action of replevin will lie. Reversed.