Plumer v. Plumer

Eastman, J. The estate of the plaintiffs’ father, to which one undivided half of the premises spoken of in the case belonged, although solvent, was settled in the insolvent course. Had it been actually insolvent, no possession of the real estate could have been taken by the heirs, because the whole estate, real and personal, would be required to pay the debts and the expenses of the administration; and the rents and profits would go to the administratrix. Rev. Stat., ch. 159, § 10; Comp. Stat., ch. 168, § 10. Being solvent, however, these premises might, or might not, be required to pay the debts. If not necessary, the heirs would be entitled to the land, and of course to the rents and profits. And even if it were necessary, they might prevent a sale, and obtain the possession, by giving bond to the judge of probate, under the provisions of § 4, ch. 164, Rev. Stat.; Comp. Stat., ch. 178, § 4. The case finds that the administratrix obtained license to sell the real estate, in October, 1852. But it does not find that these premises were sold, or that it was necessary to sell them. For aught that appears, or is suggested, the plaintiffs’ father may have left other real estate which could be sold to pay the debts. It seems that the claims against the estate were settled in May, 1852, so that the amount necessary to be made out of the real estate was not probably large. And we take it that this land was not needed in the settlement of the estate. The administratrix interposes no claim to these premises, and the judge of probate has entertained a-petition for their division, and decreed a partition of the same. This he could not have done had there been any dispute in regard to the ownership, or any complaint from the administratrix or creditors. Moreover, the defendant himself united in the prayer for the partition, and must, of course, have stated that there was no dispute in regard to the title, in order to have given the probate court jurisdiction of the application. Comp. Stat., ch. 219, § 21. — 567 — Upon this statement, it would seem evident that, nothing appearing in the case to the contrary, the plaintiffs were the.' owners of the premises, and were entitled to the management thereof, and to the benefits arising therefrom; and so far as ownership is to be considered, they could maintain any action in regard to the same. Again, the defendant hired the premises of the plaintiffs, and, as tenant, he thereby admitted their title. As a general rule, the tenant cannot dispute the title of his landlord ; and if he has recognized it, by accepting a lease, or by the payment of rent, or the like, he will be estopped from disputing it. Carpenter v. Thompson, 3 N. H. Rep. 204; Gray v. Johnson & a., 14 N. H. Rep. 414; Russell v. Fabyan, 7 Foster’s Rep. 529; Heath v. Williams, 25 Maine Rep. 209; Jackson v. Rowland, 6 Wend. 670. Upon the whole, we think there is no difficulty in sustaining the suit, upon the ground of want of title in the plaintiffs. The premises belonged to them, as heirs of their father, and in the absence of its appearing that they were wanted for the payment of his debts, it is to be taken that they were not wanted. The plaintiffs were in possession of the premises, as heirs, and without claim from any one, rented the same to the defendant, who, it would seem, is not in a position to dispute their title. Whether trover could be maintained for the manure in question, must depend upon the fact whether the plaintiffs had the possession of it, or the right of possession, and whether the defendant converted it or not. It is said that manure, generally, is personal property, and goes to the executor. Pinkham v. Gear, 3 N. H. Rep. 484; Sawyer v. Twiss, 6 Foster’s Rep. 347. And no objection was taken to the form of the action in those cases, or in Needham v. Allison, 4 Foster’s Rep. 355; in all of which trover was brought. In Conner v. Coffin, 2 Foster’s Rep. 538, which was a suit brought to recover for manure, the form of action was — 568 — trespass, the plaintiff being at the time the owner of the premises, and in possession. And in many cases, either trespass or trover may be brought. It is apparent that the plaintiffs had not the possession of the premises when the manure was removed, and could not at that time have maintained trespass quare clausum. Had they the right of possession to the manure ? Did it belong to them ? If it was their property, the action may be sustained, for it is not necessary that they should have had the actual possession. Property in chattels draws after it the possession, and the owner may bring either trespass or trover, at his election. 7 Term Rep. 9; 1 Bos. & Pul. 47. It must be regarded as settled in this State that, as between grantor and grantee, all manure made in the ordinary course of carrying on the farm, and which is upon the premises at the time of the sale and conveyance, will pass to the grantee as an incident to the land conveyed, unless there be a reservation in the deed; and that it makes no difference whether it be in the field, or in the yard, or in heaps at the windows, or under cover. It is an incident and appurtenance to the land, and passes with it, like the fallen timber and trees, the loose stones lying upon the surface of the earth, .and like the wood and stone fences erected upon the land, and the materials of such fences, when placed upon the ground for use, or accidentally fallen down. Conner v. Coffin, 2 Foster’s Rep. 538; Sawyer v. Twiss, 6 Foster’s Rep. 345; Needham v. Allison, 4 Foster’s Rep. 335; Kitiredge v. Woods, 3 N. H. Rep. 503. And although the point was not distinctly raised in these cases, yet we regard it as in effect settled by them, that manure made by a tenant, upon a leased farm, in the course of husbandry, in the absence of any special contract to the contrary, belongs to the farm as an incident necessary for its improvement and cultivation. It is the property of the lessor of the farm, subject only to the right of the tenant to use it during his term, in the cultivation of the land ; and — 569 — the tenant has no right to remove or dispose of it, or to apply it to any other use, either during or after the expiration of his tenancy. Sawyer v. Twiss, 6 Foster’s Rep. 346; Needham v. Allison, 4 Foster’s Rep. 358; Conner v. Coffin, 2 Foster’s Rep. 541. The reasons for this conclusion have been so fully given in the cases cited, that it is unnecessary to repeat them here. We think them sound, and that the rule, as stated, should be adopted. And the same doctrine has been held in New York, Massachusetts and Maine, as well as in some other States. Middlebrook v. Corwin, 15 Wend. 169; Goodrich v. Jones, 2 Hill 142; Daniel v. Pond, 21 Pick. 371; Lasell v. Reed, 6 Greenl. Rep. 222; Wetherbee v. Ellison, 19 Vt. Rep. 379. This rule does not of course apply to manure made in livery stables, or in buildings unconnected with agricultural property, and out of the course of husbandry. In such cases, the reason of the rule does not apply, and the lessor has no claim to the manure, except such as may result from express contract. Needham v. Allison, 4 Foster’s Rep. 355; Daniel v. Pond, 21 Pick. 371; Lasell v. Reed, 6 Greenl. Rep. 222. This manure, then, being upon the half of the farm set off to the plaintiffs, was their property, provided it passed to them by the partition. It was most of it made in the ordinary course of husbandry, while the defendant held the premises as tenant of the plaintiffs; and, according to the rale stated, belonged to the lessors. The small amount that was made before the leasing, in May, 1852, was attached to the freehold, and belonged to it. It was all there at the time of the division; or if any of it was not then there, it was made on the plaintiffs’ land, soon after, by the defendant, as their tenant. And it appears to be conceded in the argument, that it would have passed to the plaintiffs by deed, were there no reservation. This division was made by a committee duly appointed by the judge of probate, under the statute providing for the partition of real estate — 570 — thus situated; and we are not aware of any authority or principle, in such a division, that gives to the one party the appurtenances or incidents of the land set off to the other. Unless there be some reservation or order made by the com» mittee, the buildings, fences, trees, stones, manure, &c., that are upon one part, go to him to whom that part is assigned; and the incidents and appurtenances that are upon the other part, go to him to whom that part is assigned. We therefore arrive at the conclusion that the right of property in this manure was in the plaintiffs, and that as soon as it was removed from the premises by the defendant, upon his land, and spread and ploughed into the ground there, as the case finds, there was a conversion, for which trover could be maintained. By its separation and removal from the freehold, it became personal property, and both the right of property and the right of possession was then in the plaintiffs. It had ceased to be a part of the premises rented, and the defendant had forfeited his legal right and control over it. In Sawyer v. Twiss, 6 Foster’s Rep. 348, Bell, J., says, “ adopting the opinion which we think supported by the strongest reasons, that the manure made upon a farm, in the ordinary course of husbandry, is to be regarded as an incident or appurtenant of the real estate — a part of the freehold — the owner of the fee must, of course, have the authority and right to sell and dispose of it; to remove it from the land at his pleasure; and when so separated, it becomes like the trees and fencing materials when separated, or like muck and marl when dug up and removed— merely personal property.” A landlord has such a property in timber wrongfully cut down during a lease, as to enable him to support trover, if it be removed. Gordon v. Harper, 7 Term Rep. 13; 1 Saund. Rep. 322, n. 5; 2 Saund. on Pld. and Ev. 875. And although, where goods are let for a term of years, the lessor cannot maintain trover for them during the term, yet if trees or other things fixed and annexed to the freehold, and de — 571 — mi sed therewith, be severed during the term, they immediately become vested in the owner of the inheritance, and he may maintain trover for them. Farrant v. Thompson, 5 Barn. & A. 826; 2 Saund. on Pld. and Ev. 879. And in Pinkham v. Gear, 3 N. H. Rep. 484, one of the points decided was, that trover will lie for manure wrongfully taken from the soil. With these views, we think there must be judgment for the plaintiffs, for the full amount of the manure. It was either all of it made by the defendant, as the tenant of the plaintiffs, or was so attached to the freehold assigned to him, as to become his, with the other incidents of the land.