Bircher v. Parker

Currier, Judge, delivered the opinion of the court. When this case was here on a previous occasion (40 Mo. 118), it was held that the erections in question, upon the evidence as then presented, as between these parties, belonged to the defendant, and that he was at liberty to remove them in a reasonable time after the dissolution of the injunction which had been granted therein; and this, although his lease had expired between the granting and dissolution of the injunction. The court below, however, on dissolving the injunction, proceeded to assess the defendant’s damages, and included therein the value, for the purpose of removal, of these buildings; and for that reason the judgment was reversed and the cause remanded. The case is brought here again for the correction of supposed errors occurring in the subsequent proceedings. On the merits the evidence is conflicting. As regards the character of the erections, their connection with the original building standing on the premises, and the propriety of their removal, we concur in the finding of the Circuit Court. At the second hearing, as evidence of a conversion by the plaintiff of the erections in controversy, the defendant offered and read in evidence a warrantee deed from the plaintiff to Amaziah Jones, expressed to be for the consideration of $69,000, and dated March 26, 1866, conveying to the latter the ground on which said erections stood, “ with the rights, immunities, privileges, and appurtenances thereto belonging.” To the action of the court in admitting this deed, the plaintiff excepted. That the deed upon its face, as between the parties to it — vendor and vendee — conveyed the buildings, as well as the land on which they stood, we do not conceive to admit of doubt. There is no clause in it reserving them, nor does it contain any restriction or exception limiting its scope or effect as a conveyance. To say that the plaintiff had no right to convey away the defendant’s property does not meet the difficulty. The point is not what the plaintiff had a right to do, but what he did. As between himself and his vendee, he did in fact convey this property and vest the title thereto in the purchaser. He did this claiming the right to do so as the owner of the property, as is apparent from the [451] deed, and as this litigation sufficiently shows.. He sold the property and applied the avails to his own use. Is not that conversion ? This property (the improvements), although affixed to the realty and a part of it, as between vendor and vendee, was, as between the landlord and tenant, the mere personal effects of the latter. It is to be inferred that the plaintiff was in possession of the premises, for the defendant abandoned them at the expiration of his lease without removing the improvements, as the injunction was at that time in full force. At all events the defendant was not in possession at the time of the purchase by Jones; nor does it appear that Jones had any notice of the defendant’s ownership, unless the pendency of this suit is to be considered as affecting him with notice. Granting the defendant’s fullest right and ownership, not being in possession, could he hold as against a purchaser without notice ? The distinction between the rights of an out-going tenant and those of his landlord, in respect to improvements placed upon rented property for temporary use and for its better enjoyment by the tenant, is stated in the opinion of the court given in this suit, and reported in 40 Mo. 118. As to what passes to the vendee under a deed containing no exceptions or reservations, as in the present case, the following authorities may be consulted: 2 Strob. 478; 3 N. H. 503 ; 6 Greenl. 154; 3 Stock. Ch. 96; 4 Met. 310; 11 Barb. 63. We hold, then, that the improvements in question belonged to the defendant as against the plaintiff (his landlord), however it might be as regards a purchaser without notice ; that a conversion of them by the plaintiff entitles the- defendant to compensation therefor in damages ; that the deed read in evidence was properly admitted as tending to show such conversion by the plaintiff; and that, under the circumstances of this case, it is sufficient for that purpose. This disposes of the case without determining the effect of the appeal upon the order of the court dissolving the injunction. The judgment of the Circuit Court is affirmed. The other judges concur.