Michigan Mutual Life Insurance v. Cronk

Montgomery, J. The defendant, on the 18th day of June, 1887, contracted in writing to purchase of one William L. Jenks the N. W. £ of S. W. £ of section 19, township 7 N., range 16 E. The contract was in the usual printed form, and contained a covenant on the part of the defendant that he would not commit, or suffer any other person to commit, any waste or damage to said lands or appurtenances, except for firewood or otherwise for his own use, or while clearing off the lands for cultivation in the ordinary manner. Immediately after entering upon [51] the lands he erected a small dwelling-house thereon, and lived in it for two years. He then made default in his payments, and the plaintiff, to whom the contract had in the mean time been assigned by Jenks, terminated the contract, and required the defendant to surrender possession. The house was a one-story frame house, 20 by 26, and suitable for the purposes of a dwelling-house to be used upon the land in question. After the removal of the house from the premises, it was placed upon a 40 across the street, and plaintiff, after demand, brought replevin. The circuit judge directed a verdict for the plaintiff, and the defendant appeals. Two questions only are presented in appellant’s brief. It is first claimed that replevin will not lie, because the house had become a fixture upon the land to which it was moved, and was therefore real estate; second, that, as the house was occupied as a homestead by the defendant and his family, the wife was a necessary party. We think that when this house was erected upon the land held under contract it became a part of the realty, and as such the property of the owner of the land, subject only to the rights of the purchaser therein. Kingsley v. McFarland, 82 Me. 231 (19 Atl. Rep. 442); Milton v. Colby, 5 Metc. (Mass.) 78; Iron Co. v. Black, 70 Me. 473; Tyler, Fixt. 78. It being severed from the land, it became personal property, and replevin would lie unless it became affixed to the realty by the tortious act of the defendant in removing it and placing it upon other lands. But we think no such legal effect can be given to the defendant’s wrong. The house was moved upon land of a third party. There was no privity of title between the owiiership of the house and the ownership of the land to which it was removed. The cases cited by defendant of Morrison v. Berry, 42 Mich. 389, and Wagar v. Briscoe, 38 Id. 587, do not apply. [52] The house remaining personal property in the wrongful possession of defendant, it follows that no homestead right, which consists in an interest in lands, attached. The judgment is affirmed, with costs. The other Justices concurred.