Walton v. Wray

Eothkook, J. The important question in the case is whether the com elevator was real estate, or personal property. .If it was real estate the judgment off $1,000 rendered by the Circuit Court was a lien upon it, and the plaintiff’s title thereunder would be valid. If it was personal property-the levy made under the judgment recovered before the justice of the peace was valid, and the sale of the property inade under such levy invested the defendant with the title. It is claimed by the appellant that the corn elevator was a fixture aj>purtenant to the mill because it was operated by a shaft connected with the mill. This position, we think, is not tenable. The corn elevator was, so far as appears, a separate structure, in which an independent business was carried on, and it was not merely an appurtenance to the mill. [533] 1. JUDICIAL tion • justice of the peace. [532] II. It is contended that, as the constable’s sale was mads [533] some two weeks after the expiration, of the last renewal of the execution, the sale passed no title to the defend- ’ r aTlt’ Counsel concedes that executions issued by eourj,s Gf reeord are sufficient authority for a sale after the life of the execution has expired, provided the levy has been made during the life of the execution. See Butterfield v. Walsh, 21 Iowa, 97; Moomey v. Maas, 22 Id., 380; Stein v. Chambless, 18 Id., 474. But a distinction is sought to be made between an execution issued by a justice of the peace and one issued from a court of record, because in the former the execution is required to be renewed from time to time. Code, § § 3572,3,4. "We can see no reason, however, for such a distinction. An execution from a court of reeord is required to be returned in seventy days, and another issued if necessary to sell property which has been levied upon, or the levy may be abandoned and a new execution issued. Códe, § 3086. The only difference in the two kinds of executions is in the manner of the renewal. 2._; ciiar. erty* real sonaity?61 III. A material question in the case is whether Stein had such an interest in the land upon which the elevator was situated as to constitute his property right therein real estate. If so, the judgment under which plaintiff holds was a lien thereon, and his title must prevail. The evidence shows the arrangement by which the elevator was erected. The only witness who testified upon that subject was the said N. S. Stein. His evidence is as follows: .“Before this corn elevator in controversy was built I saw the superintendent of the Des Moines Valley Railroad at Leighton. All the talk we had about building was while the train stopped.' I told him I wanted to build a corn elevator on the right of way at Leighton opposite my mill. He asked me if it would be permanent or temporary. I told him it would be temporary. He said I might build it. That was all that was said about it.” :i: * * It will be seen that the authority thus given was not a lease of the land upon which the elevator was erected. It [534] was a mere license; and all the right acquired by Stein was to erect his building, and remove it when a removal was required. It was understood to be a mere temporary occupancy. It was not such an interest, in real property as to be the subject of a judgment lien under Sec. 2882 of the Code. The building was a mere chattel. “ A house erected by one man upon the land of another by his assent, and upon an agreement or understanding that the builder may remove it when he pleases, does not become a part of the real estate, but remains a personal chattel and removable.” Wait’s Actions and Defenses, Yol. 3, 381. Even if said Stein had held a lease of the land upon which the building was erected, and had built it for the purpose of carrying on his business therein, lie wóuld have had the right of removal, and in such case it has been held that the building would have been personal property during his term of lease, and liable to be levied upon and sold as personal property for his debts. Heffner v. Lewis, 73 Pa. St., 302; Lemor v. Miles, 4 Watts, 330; Amos & Ferrard on Fixtures, p. 250, and authorities cited. And see Wait’s Actions and Defenses, Yol. 3, 391, and authorities there cited. The building, then, being a personal chattel, was not the subject of a judgment lien, and having been first seized upon the execution issued upon the judgment rendered by the justice of the j>eaco, under which the defendant holds, we think the court correctly held that his title was superior to that of the plaintiff. Affirmed.