
    The State ex rel., &c. v. Bonham and Others.
    Where it appears from the whole record, that the merits of the cause were fairly heard and determined below, this Court will not reverse the judgment on account of errors in rulings on demurrers.
    If the owners of fixtures may rightfully remove them from the realty to which they are annexed, whilst it is in the rightful occupancy of another, such .fixtures are personal property, and, as such, may be taken and sold on execution.
    APPEAL from the Bipley Oommon Pleas.
   Perkins, J.

The record in this cause makes the following ease:

Jacob B. Dorsh was the owner of a tract of land. On that tract of land William Bisinger erected, and operated a steam saw mill. Upon what terms he was permitted to put up the saw mill, does not appear; nor is it shown for how long a time he was to be permitted to use it upon the land, nor what were to be his rights. at the expiration of the time. But the complaint avers that the mill and machinery were the property of Risinger, and that fact may, therefore, be taken as admitted by Dorsh and Risinger. A joint judgment for some 600 dollars was obtained in the Ripley Common Pleas, against said Dorsh and Risinger. * An execution on the judgment was placed in the hands of Bonham, the sheriff of Ripley county, and he called on Risinger for the money, or for property, upon it. Risinger turned out the engine and machinery of the saw-mill; the sheriff took a delivery-bond for the property from Risinger, advertised it for sale as personal property, that is, by posting up notices in three of the most public places in the township, and, on the day appointed therefor, sold it, Risinger being present, to one Alexis Volz, who after-wards made some arrangement, but what is not shown, by which the property was suffered to remain undisturbed in the mill.

We state, as one of the facts, that the property was advertised in three of the most public places in the township because the jury so found.

This suit was brought upon the joint relation of Dorsh and Risinger, against the sheriff and his sureties on the sheriff’s bond, and two breaches were assigned.

1. That the sheriff had sold real estate without advertising in a newspaper which was published in the county.

2. That he had sold personal property without posting-notices in three of the most public places in the township.

This second breach did not exist, as we have seen above, and we shall only, therefore, in what we may say, address ourselves to the first. But before doing so, we will notice a point of practice.

The defendant demurred to the complaint, the demurrer was sustained, the plaintiff excepted, and then amended his complaint, by re-stating, with more fullness, the same cause of action. On tbe amended complaint, issues of fact were found, and tbe merits of the cause fairly tried. This being so, we can not, for that cause, reverse the judgment, even if the Court erred in its ruling on the demurrer. A case is made falling within the spirit of the section of the statute quoted in Crake et. al. v. Crake, at the present term; and also of the statute of jeofails.

E. P. Ferris, for the appellant.

O. B. Torbett, for the appellees.

Proceeding now to the question whether the engine and mill fixtures were real or personal property, it may be asserted that if Risinger would have been entitled to remove these fixtures from the premises of Borsh, during the term of his right of occupancy of the premises, they would, as between Borsh and Risinger, be personal property; and if personal property as between them, they might be liable to be taken on execution against Risinger, the owner of them, though the execution was a joint one against Risinger and others. Taffe v. Warnick, 3 Blackf. 111. See Frederick v. Devol, 15 Ind. 357, and note, where authorities on fixtures are collected.That Resinger would have had the right to remove the engine, &e., we have no doubt. Van Ness v. Pacard, 2 Pet. (U. S.) Rep. 137; Amos and Eerard on Eixtures, 2 Am. ed. Top. p. 46, note 1, where the cases are collected. See, also, McCracken v. Hall, 7 Ind. 30.

Per Curiam.

The judgment below was for the defendants, and it must be affirmed, with costs.  