
    Bowers H. Leonard, Pl’ff, v. Robie Clough and DeWitt C. Clough, Def’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 16, 1891.)
    
    Pixtures—Severance from realty.
    Defendants conveyed to their daughter certain premises on which was a portion of a barn, which was not attached to the realty but built upon stones sunk in the ground and which could be removed without injury to the soil. At the time of the conveyance the daughter told defendants that the barn was theirs, and they continued to occupy it, and subsequent grantees of the daughter, including the plaintiff, were notified that the barn belonged to defendants. In an action for removing .said barn, Held, that the barn by its nature and mode of construction was capable of being treated as personal property and of being reimpressed with that character by agreement, and that defendants had a right to remove the same.
    (Dwight, P. J., dissents.)
    
      Motion for a new trial on case and exceptions ordered to be heard at the general term in the first instance in a cause tried in Cayuga county.
    
      Amasa J. Parker, for pl’ff; Payne & O'Brien, for def'ts.
   Corlett, J.

The defendants were the owners of a lot of land situated in the city of Auburn, about four rods in width, upon which there stood a frame barn sixteen feet in width and twenty-four feet in length. It was a small structure built upon stones sunk in the ground. It was not attached to the stones or the ground, and the evidence tended to show that it was so built that it could be removed without injuring the soil or disturbing the foundations upon which it rested. Soon after Mrs. Bobie Clough became the owner of this land she deeded to her daughter, Mrs. Gilbert, a portion of the lot, which conveyance included two-thirds of the barn.

The grantor, Mrs. Clough, testified that at the time of the execution of the deed to her daughter, and after its delivery, the grantee stated: “How, pa and ma, the barn is yours; there can nobody interfere.” The grantee, Mrs. Gilbert, on this subject testified that on the same occasion she received the deed she told her father and mother that the barn was theirs. After that the grantors occupied the barn, and each grantee from Mrs. Gilbert had notice before they took a conveyance that the barn belonged to the defendants.

In the case of the plaintiff, the evidence as to whether he received such notice was conflicting, but the jury found in favor of the defendants’ contention.

It does not distinctly appear, nor is the point material, whether the original grantor and grantee had an understanding or agreement before the execution and delivery of the warrantee deed that the barn should remain the property of the grantors, but it does appear that immediately after the execution and delivery, and on the same occasion, the grantee stated to the grantors that the barn was theirs, which would naturally imply that there was either an express or implied understanding before the execution of the deed that such should be the case.

The plaintiff’s contention is that the barn was a part of the real . estate and that it passed by the deed. This undoubtedly would be so in the absence of facts showing a different understanding or agreement

In Ford v. Cobb, 20 N. Y., on page 348, the court say: “It will readily be conceded that the ordinary distinction between real estate and chattels exists in the nature of the subject and cannot in general be changed by the convention of the parties. Thus it would not be competent for parties to create a personal chattel interest in a part of the separate bricks, beams or other materials of which the walls of a house were composed. * * * But it is otherwise with things which, being originally personal in their nature, are attached to the realty in such a manner that they may be detached without being destroyed or materially injured, and without the destruction of or material injury to the things real with which they are connected, though their connection with the land or other real estate is such that in the absence of an agreement or of any special relation between the parties in interest they would be a part of the real estate.”

On. page 349 the court say: “ If the subject which would otherwise be real estate can be made personal by the creation of special relations between the parties, it is clear that the same parties may effect the same thing by express agreement,”

In Tyson et al. v. Post, 108 N. Y., 217-221; 13 N. Y. State Rep. 503, the court say, “ There can be little doubt, however, that the machinery, shafting, rollers and other articles became as between vendor and vendee, and mortgagor and mortgagee, fixtures and a part of the realty. Citing McRea v. Central Nat. Bank, 66 N. Y., 489. But as, by agreement, for the purpose of protecting the rights of vendors of personalty, or of creditors, chattels may retain their character as chattels, notwithstanding their annexation to the land in such a way as in the absence of an agreement would constitute them fixtures, citing Ford v. Cobb, supra, and Sisson v. Hibbard, 75 N. Y., 542, so also, it would seem to follow, that by convention the owner of land may reimpress the character of personalty on chattels which by annexation to the land have become fixtures according to the ordinary rule of law, provided only that they have not been so incorporated as to lose their identity and the reconversion does not interfere with the rights of creditors or third persons.”

The materials out of which this barn was constructed were originally personal property, and the bam erected in the form it was might remain such if originally so intended. Voorhees v. McGinnis, 48 N. Y., 278, and the cases above cited. Kinsey v. Bailey, 9 Hun, 452.

In Batterman v. Albright, 122 N. Y., 484-490 ; 34 N. Y. State Rep., 131, the court say, “And if the right of the plaintiff in the present case had been acquired to the trees prior to the mortgage, a different question would have been presented. In that event, the sale upon the execution and purchase by the plaintiff may have, so far as essential, been treated as a sverance of the growing trees from the realty."

In the case at bar it could never have been intended by the grantor or grantee that the barn should be occupied in common.. A joint ownership would be useless to either party. Confusion might have been avoided by a reservation in the deed. But it was competent for the parties to treat the barn as personal property. It was so regarded between the original grantor and grantee. The defendants occupied and exercised dominion over the barn after their deed. The plaintiff, as the jury found, had notice that the barn after the deed was personal property with the right on the part of the original grantors to remove it. Every subsequent grantee including the plaintiff had notice of that fact. The plaintiff’s right was acquired after the agreement or arrangement to treat the bam as personal property, and he, therefore, occupies the position stated in the quotation from 122 N. Y.

This barn in view of its mode of construction was in its own nature capable of being treated as personal property and was not, within the exception stated in the 20th of New York, incapable ■of being retained or changed into personal property.

The judge in the Tyson case, above cited, states, in substance, that although the barn was real estate, it could by agreement be impressed with the character of personal property. ■Such was the arrangement and intention in the case at bar, of which the plaintiff had full notice before he took his deed.

The submission of the case to the jury by the trial justice was correct, and their findings under the instructions given correct

Alleged errors in the admission or rejection of evidence are entirely immaterial as the questions involved in them would only become important in case the plaintiff was entitled to recover. The same is true as to the time of removal; it was entirely immaterial whether it was removed by night or day.

The motion for a new trial should be denied.

Macomber, J., concurs.

Dwight, P. J., (dissenting.)

The action was for damage to the freehold by the removal from the plaintiff’s lot of a portion of a ■small barn which stood thereon.

In March, 1884, the defendant Mrs. Robie Clough became the ■owner, by warranty deed, of a lot of land four rods wide situate on the east side of Morris street in the city of Auburn, on which ■stood the barn in question adjacent to the north line of the lot. 'The deed was recorded soon after it was delivered.

In April of the same year Mrs. Clough conveyed, by warranty deed, to her daughter Mrs. Gilbert, the same premises, excepting and reserving therefrom a strip of land six feet wide along the north line of the lot, Mrs. Clough being then and now the owner ■and occupant of the lot next north of the strip reserved. The reservation included about one-third of thcbarn. The deed to Mrs. Gilbert was recorded within a few days after its date.

In November, 1888, the plaintiff became the owner, by several mesne conveyances, of the premises so conveyed to Mrs.' Gilbert No one of such conveyances contained any reservation or exception; all contained covenants of warranty and were duly recorded.

On the trial of this action evidence was received, under objection and exception by the plaintiff, to show that after the execution and delivery of the deed to Mrs. Gilbert, she attempted to make an oral gift of the barn to her father and mother, declaring • to them that now the barn was theirs, that nobody could inter- ' fere with them in their right; that they had full permission to have it as theirs.” Evidence was also received, under similar •objection and exception, to show that the subsequent grantees of the lot, including the plaintiff, were informed at the time of their ■several purchases that no part of the barn went with the lot, but that the whole of it belonged to the Cloughs. This evidence, so far as it related to the plaintiff, was contradicted.

In April, 1889, the defendants, without the knowledge or consent of the plaintiff, removed the barn wholly onto the lot of. Mrs. Clough, and the plaintiff brought this action to recover the diminution in value of his lot by reason of such removal.

The questions arising on this motion for a new trial are presented by the plaintiff’s exceptions to the admission of evidence on the part of the defendants for the purpose of establishing an oral transfer of the barn to themselves, and an oral reservation of the same at the time of the sale to subsequent purchasers, including-the plaintiff; as well as by his exceptions to the charge of the court to the effect that it was competent for the parties to the several deeds to fix the character of the barn as personal property and to transfer or reserve it by word of mouth. I think the exceptions were well taken and are fatal to the verdict.

The case is not one in which personal property was annexed to the freehold and in which the intention of the parties at the-time of making the annexation is a test of the character of the property after that time. Such were the cases of Voorhees v. McGinnis, 48 N. Y., 278, and Tifft v. Horton, 53 id., 377. In this case the barn was never personal property, but part of the freehold from the beginning. It was not built'by a tenant for the purposes of his tenancy with the agreement that it might be removed at the end of the term; but by the owner of the soil as an addition to the usefulness and value of the lot, and it was from the moment of its erection as much a part of the freehold as the-soil itself.

The same answer must be made to the contention that the case; was, within the doctrine of Tyson v. Post, 108 N. Y., 217; 13 N. Y. State Rep., 503, one in which the character of personalty might be re-impressed upon the property by parol agreement,, after it had been once annexed to the freehold as fixtures; the-answer, namely, that this building had never possessed the character of personalty, but was" always a part of the realty, and could never cease to be so until actually severed from the freehold. The case of Mott v. Palmer, 1 Comst., 564, which is cited by the defendants on this branch of the case, seems not to support their contention. That was an action on a covenant of seizin, and related to a quantity of rails which had been placed on the land by a tenant, and erected into a fence by him, under an agreement, that he might remove them' at the end of his term. The action was sustained by the court of appeals, which, of course, could have been the result only on the theory that the fence was as between the grantor and grantee a part of the freehold, and thus embraced in the covenant of seizin ; and such it was held to be, although as between the owner of the soil and the tenant it was personal property, and belonged to the latter.

In the present case there can be no question but that the portion of the bam which stood on the lot conveyed by Mrs. Clough to Mrs. Gilbert was at the time of such conveyance a part of the realty, and, as such, passed to the grantee in the deed, both as-between themselves and as to all the world. The defendants concede so much when they plant their defense upon the theory of a gift and transfer of that portion of the property from Mrs. Gilbert to her parents. So that, really, the only question is, could such a transfer be effectuated by an oral agreement? Certainly not unless there is something to deprive the statute of frauds of application to this case, which declares that “no estate or interest in lands * * * shall hereafter be created, granted, assigned, surrendered or declared, unless by a deed or conveyance in writing.” The term lands in the statute is employed in its widest sense to embrace everything that belongs to the soil and forms a part of the freehold. Undoubtedly it is competent for the owner -of the lands to agree orally to sell or give away a building to be removed from the premises, and so give title to the building when once it should be removed; but it will not be contended that the purchaser could enforce specific performance of such a contract

I know of nothing in this case to take it out of the statute of frauds, and am of the opinion that the rulings of the court admitting evidence of the attempted oral gift of the barn, and the -charge of the court relating to the effect of such- evidence, were error for which the motion for a new-trial should-be granted.

Exceptions overruled, and judgment directed for the' defendants on the verdict.  