Byrne v. Werner

Carpenter, J. Plaintiff brings this suit to recover for the conversion of certain cut stone and structural iron. The property originally belonged to plaintiff’s father, Samuel E. Byrne. Both parties claim to have acquired his title. Plaintiff claims to have acquired it by a bill of sale executed in 1896. It is defendants’ claim that in 1887 the property in controversy was transferred by Samuel E. Byrne to Henry C. Thurber, and that they have acquired Thurber’s rights. It is clear that defendants have acquired the rights of Thurber, and that, therefore, the validity of their claim depends upon whether Byrne transferred the property to Thurber. The facts respecting the transfer are as follows: In 1887 Byrne conveyed to Thurber by a warranty deed (intended to be a mortgage) lots 4 and 5 of block 17 in the city of Marquette. At that time there was situated upon these lots a partially completed building in the process of erection. There was also situated on the land conveyed and on an adjoining lot the cut stone and structural iron involved in this case, which was intended to be used in the completion of the building. The stone had been cut and dressed for the front of the building. Each piece of the structural iron was of the dimensions provided in the plan of the building, and fit for the place where it was to go. At that time it was intended that the building would be completed. The plan of completing the building was, — 330 — for some reason, abandoned, and defendants used the stone and iron for another purpose. Did the title to that material pass to Thurber by his deed ? The learned trial judge held that it did not. It is urged that the building material had not become a part of the land, and was, therefore, in a legal sense, personalty at the time of the conveyance to Thurber. If this be true, it is not, in my judgment, decisive of this controversy. Though the building material was personalty, it is our duty to declare that it passed with the partially completed building, if the parties so intended, and if that intent may be ascertained from a proper construction of the conveyance of the land upon which' said building stood. The question is, then, not whether the building material was in fact personalty, but whether it was intended to transfer it with the conveyance of the partially completed building. And this intent is to be determined by a proper construction of the conveyance; that is (see Norris v. Showerman, 2 Doug. 16; Davis v. Belford, 70 Mich. 120), by applying the language of the conveyance to its subject-matter. No uncertainty results from this rule. Upon the land con- • veyed to Thurber was an incomplete building in the process of erection. Situated upon that land and upon the adjoining land was building material designed to be used for the completion of the building. It was surely intended that the incomplete building should be transferred to Thurber. It was surely intended that the building would be speedily completed with the building material at hand. And I think it therefore equally certain that it was intended that such material should pass with the conveyance. In my judgment, there is no sound principle of law which compels us to defeat this intention. On the contrary, I maintain that it is our clear legal duty to give it effect. I think, therefore, that the building material became the property of Thurber. This conclusion is sustained by authority. In Wistow’s Case of Gray’s Inn, (14 Hen. VIII.) 11 Coke, 50b, it was resolved that a millstone temporarily — 331 — severed from the mill, with the intention that it should be replaced, passed with the conveyance of the mill. “So of doors, windows, rings, etc. The same law of keys, although they are distinct things, yet they shall pass with the house.” In Conklin v. Parsons, 1 Chand. (Wis.) 240, it was held that rails placed along the boundary line, “not laid up into a fence, but which had been placed on the land for the purpose of building the fence,” passed with the conveyance of the land. In Ripley v. Paige, 12 Vt. 353, there was a controversy as to whether certain rails passed with the conveyance of land from plaintiff to defendant. Defendant offered to prove that when the conveyance was made the rails were distributed upon the farm for the purpose of being there erected into a fence. The court said: “ Upon this branch of the case we are inclined to regard the rails, if it was evident from the manner of their distribution upon the land, and other appearances, that they were designed for immediate use in fencing the land, as we should the materials. of a fence accidentally fallen down, or of one purposely taken down to be immediately reconstructed, or those of an intended wall distributed in like manner. As fences always pass by a deed of the soil on which they stand if the grantor has an unrestricted right to convey both, so we are disposed to think that such materials for a fence may, in all these cases, as against the grantor, be treated as being within the operation of his deed.” In Hackett v. Amsden, 57 Vt. 432, it was held that stone posts, which it seems were deposited on a farm for the purpose and with the intention of building necessary fences, could not be seized and sold as personalty; the court saying: “ Whatever the rule may be elsewhere, it seems to be settled in this State that suitable materials, deposited upon a farm for the purpose and with the intention of building necessary fences with them thereon, pass by a conveyance of the land as a part of the realty.” — 332 — In Wadleigh v. Janvrin, 41 N. H. 503, it was held that certain stanchion timbers, stáples, tie chains, and planks, which had been removed from a barn for the purpose of making repairs, passed to plaintiff by a conveyance from defendant of the land upon which the barn stood, notwithstanding the fact that the latter had formed a plan unknown to the former to make changes in the barn and to dispense with their use. The court said: “It was entirely immaterial what purpose the defendant had formed, so long as he had not carried it out. By the conveyance the barn passed to the plaintiff just as it then was, with portions afterwards carried off by the defendant dissevered from the rest. The plaintiff saw the barn in the process of repair. He had a right to infer, and to act upon the inference, that the dissevered portions constituted an integral portion of the edifice.” In Palmer v. Forbes, 23 Ill. 301, it was held that the title to rolling stock and the material provided for the repair of tracks was transferred by a mortgage of the real estate of a railroad company; the court saying: “Itis a familiar principle to all that rails hauled onto the land designed to be laid into a fence, or timber for a building, although not yet raised, but lying around loose and in no way attached to the soil, are treated as a part of the realty, and pass with the land as appurtenances.” This decision and reasoning go farther than it is necessary for us to go in the case at bar. . In McLaughlin v. Johnson, 46 Ill. 163, it was held that rails which had once been and which were intended to again be used for a fence passed with the conveyance of the land notwithstanding the fact that at the time of such conveyance they were actually in temporary use on adjoining land. See, also, Curtis v. Leasia, 78 Mich. 480. Harris v. Scovel, 85 Mich. 32, is not inconsistent with these views. There it was held that rails piled on land did not pass with its conveyance. The rails had once formed part of a fence. The grantor had taken down the fence because it was no longer needed, intending to use — 333 — the rails elsewhere. It is clear that there was no ground upon which the grantee could assert that it was intended that the rails should pass with the land. Johnson v. Mehaffey, 43 Pa. St. 308, relied upon by-plaintiff and the learned trial judge, is, in my judgment, clearly distinguishable from the case at bar. In that case it was held that rolls originally purchased to be put in a mill did not pass upon a conveyance of the mill. At the. time of the sale these rolls had for nearly three years re-' mained on the property, unused, and in a rough, unfinished state. They were not necessary to the operation of the mill, for the mill had always run without them. This afforded a ground for saying that it was not intended that the rolls should pass to the purchaser of the mill. That gound does not exist in this case, for the building material in question was necessary for the completion of the building. Woodman v. Pease, 17 N. H. 282, cited by plaintiff, is very similar to Johnson v. Mehaffey, supra, and is likewise distinguishable from the case at bar. It is true that the court in deciding each of these cases stated that personalty does not become a part of real estate until actually annexed thereto. If by this it was intended to assert that, notwithstanding the obvious intent of the parties, property originally personalty, will not, unless actually annexed thereto, pass on a conveyance of real estate, the court made a statement not necessary to its decision—which might have rested upon the intention of the parties concerned—and which, as already indicated, I cannot approve. Other cases cited by plaintiff are even more easily distinguishable. In Cook v. Whiting, 16 Ill. 480, it was held that the c< simple intention ” of the vendor, before he sold his farm, to erect posts into a fence and hewed timber into a granary, without having done anything towards those objects more than to haul said posts and timber onto the farm, “is not sufficient to pass the property in said posts and timber.” — 334 — In Peck v. Batchelder, 40 Vt. 233, the court gave effect to the obvious intention of the parties in deciding that certain property, viz., detached extra blinds and windows, did not pass with the sale of the house. It was held in Carkin v. Babbitt, 58 N. H. 579, where the controversy arose between the owner and an attaching creditor, that lumber designed for the erection of a house was personalty. The facts in that case were very unlike those in the case at bar. The lumber was “neither in form nor position as it was designed to be permanently used.” There was nothing “ to distinguish it from ordinary lumber suitable for building purposes.” Nor could the court apply in that case the principles applicable to a controversy between mortgagor and mortgagee. I think, therefore, that the defendants were entitled to a verdict, and that the judgment should be reversed, with costs, and a new trial ordered. Grant and Montgomery, JJ., concurred with Carpenter, J.