
    Smith & Britton vs. Benson & Peck.
    
      Prima facie, a building erected by one person on another’s land, is to be treated as a fixture, and a part of the realty.
    But, if it he so erected, under an understanding or agreement that it may be removed at any time, it is then no part of the realty, but personal property, for the conversion of which trover will lie; especially where it is only slightly fixed to the freehold. One deriving title from a person who had previously mortgaged a building, so erected, as personal property, is not in a situation to insist, as against the mortgagee, that it is a part of the freehold.
    Nor is he at liberty to dispute the title of the mortgagor.
    Trover, for a building used as a grocery and dwelling house. The cause was tried at the Onondaga circuit, April 11th, 1839, before Moseley, G. Judge. The plaintiff’s title was derived under a mortgage dated September 20th, 1837, from one Ladd, in which the building was described as situated on a lot belonging to the estate of I. Brackett and T. M. Wood, deceased; and was treated in the mortgage as a chattel. The mortgage was in the usual form of instruments of that nature relating to personal property, being a sale, defeasible on payment. It provided that in case of default, (fee. the mortgagees might enter, <fec. and take and carry away, (fee. and sell, (fee.
    The testimony as to the character of the building, and its connection with the premises on which it stood, showed, that it was set upon blocks or pins drove in the ground, and, as one witness said, was elevated above the surface, and did not rest on the ground or on stones. Other witnesses testified to their belief that it rested on the ground, and said that there was a cellar under it; that a plank in the cellar standing end wise, had started the floor up; that the sills on the east sido had settled into the ground; that the linter part in the rear rested on the ground; that there was a chimney in it, &c. ,
    Ladd was in possession of the building when he gave the ‘ mortgage to the plaintiffs, occupying it as a grocery; and it had also been occupied as a dwelling.
    The building was erected -by one Brown, in 1828, who rented the ground on which it stood, of Brackett and Wood, with the understanding that he was to have three or six months notice to remove the building. The possession of the building had changed, passing from Wood down through Ladd to the present defendants.
    The defendants purchased the building of Ladd, subject to the mortgage, the amount due on which was deducted from the purchase money; and the defendants had recognized the plaintiff’s title in September, 1838.
    The defendants gave in evidence a lease of the ground upon which the building stood, to Benson, one of the defendants, and R. Lee, for the term of two year’s from January 9th, 1838.
    On the 10th of December, 1838, default having been made in respect-to paying, the moneys secured by the mortgage, and the defendants being in possession of the building, G. Lawrence1 as agent of the plaintiffs demanded possession from the defendants, who refused to surrender it.
    The judge charged the jury that if they believed the building could be r'emoved without injury to the freehold, and that it was built with a view to its being removed when the land-1 lord required it, it was a chattel, and trover might be maintain--1 ed for it. That, both parties Claiming under Ladd, the defendants could not questioff the plaintiff’s title.
    The verdict being for the plaintiffs, the1 defendants’now’ move1 for a new trial on a case.
    
      
      J. A. Spencer, for the defendants.
    
      E. A. Brown, for the plaintiffs.
   By the Court, Cowen, J.

The judge was clearly right with regard to the title of the plaintiffs; and the only question calling for consideration is, whether the building was a fixture in that sense which precludes the right to bring trover for it.

The building was slightly fixed to the freehold; and all parties—the owners of the lot on which it was built—the builder himself—Ladd the mortgagor who succeeded him. and the plaintiffs, the mortgagees—regarded it as the subject of removal at any time: and when the mortgage came to be given by Ladd to the plaintiff, they treated it as a mere moveable thing, on a footing with other personal property. The defendants themselves took from Ladd; they stand in his shoes, and the case is the same as if they had given the mortgage themselves. Thus, both these parties agreed to consider it as in a state of severance from the freehold; and no one had ever thought of its being so fixed as to be irremoveable. Prima facie, such a building would be a fixture, and would not be removeable. The legal effect of putting it on another’s land, would be to make it a part of the freehold. But the parties concerned may control the legal effect of any transaction between them, by an express agreement. They have, in effect, stipulated, that the placing of this building on the ground of Brackett and Wood, should work nothing more towards changing its nature than if it had been the loose timber of the house, instead of the house itself. The law often implies an agreement of nearly the same character from the relation of lessor and lessee, or tenant and remainderman. And, surely, the parties may, by express agreement, do the same thing, and even more. If they .agree, in terms, that a dwelling house shall, as between them, be considered strictly a personal chattel, it takes that character. And so of any equivalent agreement or understanding, which we think existed in this case between all the parties concerned.

The learned judge was. right at the circuit; and the motion for a new trial should be denied.

New trial denied.  