
    *Cresson and others against Stout.
    If a sheriff makes a levy on goods on one execution, and afterwards a second execution comes to liis hands, the levy is sufficient for both, and he may, se!1 ‡® goods on the second execu-as
    of ¶?01⅛ “per a óught tobeat Pla“whf« sitimuS'so that tbey be specifically seen and ex amined. And where a sale miles distant from the goods, was mad U warbeid'T-to?"!ar Sesfirf1 real' and per-gether, without ®ny ⅛™1®"
    
      J freehold; butjf, f<ter tbe. sbenfl them, they are bteomepemroi «/property,and ™(“y be reP|ev~
    it seems that J¡£ and taw, and cN'hng^,T“: ⅛⅞ auadmd'tiTthe building, by an frames, and fastened at the ceiling, and by elects nailed to the floor round the feet of the frames, but the machines or frames, themselves, not nailed to the building, are not fixtures, but personal property.
    
      Personal property is bound from the time the execution is delivered into the hand's of the sheriff.
    THIS was an action of replevin, tried before Mr. Justice Van Ness, at the Rensselaer circuit, in 1818. The property for which the suit was brought, consisted of two frames for spinning flax, a frame for spinning tow, and two carding machines, and was, at the time of the commencement of the action, in March, 1817, in the store of Jabez Burrows; in Troy. The plaintiffs alleged, that the defendant had taken the articles from their possession and factory in Schaghticoke, in Rensselaer , 1 ¿a? COlinty.
    The defendant pleaded, 1. Non cepit; 2. Property in the defendant. . ‘
    . On the trial, the plaintiff produced a mortgage from Josiah Chapman and his wife, to the plaintiffs, dated April 21, 1815, for a piece of land in Schaghticoke, “ together with the machinery for manufacturing flax and hemp, and for spinning the same with thread or yarn, and the watercourse thereunto belonging.” The mortgage was registered the 25th of May, 1815. It was proved that the frames for spinning íoiv, and the two carding machines, were in the factory, at the date of the mortgage ; but that the two frames for spinning flax were placed in the factory, in August or September following, by Chapman, the mortgagor; and that they were all removed by the defendant, in February, 1817, to Burrows’s store in Troy. That, on the 30th oí September, 1816, the mortgagor delivered to the plaintiffs, the mortgagees, possession of the factory and all the machinery and articles then in it, comprising the articles in question, and, as the witness understood, as security for the mortgage debts. The plaintiffs immediately put a tenant into possession of the factory and machinery, who left the premises ⅞ October; and the witness, with his leave, went into possession, but paid no rent, and held the premises, at the will of the plaintiffs. On the 1.3th 01 November, the defendant told the witness, that he had bought the property and machinery at the sheriffs sale, and that the witness must take a lease of it, which he did. The carding machines were fastened to the floor with wooden pins, and the frames for spinning flax and tow were fastened by upright pieces, extending to the upper floor; and fleets were nailed to the floor round the feet; but neither of them were nailed to the building, and might be raised and removed by a strong man. '
    The plaintiffs having rested their cause, the defendant’s counsel moved for a nonsuit, because the property was taken from the possession of the tenant, not from that of the plaintiff; and because the machinery, being fixed to the freehold, was real estate, and not the subject of replevin ; bat the judge denied the motion.
    
      Horace Turner, a witness for the defendant,
    testified, that he was the under sheriff, and that there were several executions against Chapman; under one of which, in favor of Hudson, tested August, 1316, and issued the 24th of September, on a judgment docketed the' 20th of September, 1816. the factory and machinery were taken ; and he sold the real estate, as well as the machinery, at Troy, six miles distant from the factory. He put up tor sale the machinery as chattels real, with the factory, &e., and the defendant became the purchaser. The execution was at the time in the hands of Brockway, another deputy sheriff Two prior executions were in the hands of the sheriff, one on the 30th of July, and the other on the 17th of September, 1816, which, the under sheriff stated, were satisfied out of the other personal property sold. The money received from the sale of the factory ant! machinery, was paid into the hands of Brock way, on the execution he held, and he gave the deed to the purchaser. This deed, which was produced, was dated November 13, 1816, for the consideration of five dollars. The witness stated, that he and Brockway acted together, as to the sale of Chapman’s property ; that he did not know on which of the executions he made the levy on the property in the factory. He merely made an ^inventory ; he did not remove the machinery from the factory ; nor did he. until after the sale, lock it up. That at the sale, at Troy, it was agreed between Hudson and Stout, that if Stout would not bid against Hudson when a stone-ware factory was put tip for sale, that Hudson would not bid against Stout when the factory and machinery in question were put up. Hudson, who was sworn as a witness for the defendant, said, he recollected no such agreement with the defendant: that he did not know that the factory and machinery were to be sold under his execution; and that, as there was a dispute about the property, he refused to bid upon it.
    
      Tillman, a witness for the defendant,
    testified, that the property was sold at Stout's request, and the witness advised Hudson to put it up, and it was sold subject to the mortgage; he also confirmed the evidence of the deputy sheriff, as to the agreement between Hudson and the defendant, not to bid against each other.
    
      Brockway, the deputy sheriff, said, that he advertised the sale of the factory and machinery ; that he levied on the property of Chapman in Troy, but not on the factory and machinery , that he and Turner, the other deputy sheriff, acted jointly and in concert, as to the executions in their hands, respectively
    The machinery was proved to be worth about 2,500 dollars.
    The judge directed the jury to pass upon two questions of fact: 1. Whether Hudson and Stout agreed not to bid against each other, as testified by Turner; and 2d. as to the value of the machinery. The jury said, that they found that there was no such agreement between Hudson and the defendant, as had been stated by Turner; and that the value of the machinery was 2,500 dollars, when it was replevied. The parties thereupon agreed to take a verdict for the 2,500 dollars, subject to the opinion, of the court, on the whole case, and the finding of the jury.
    
      Mitchitt, for the plaintiffs,
    contended, 1. That the plaintiffs had shown a right of property in the machinery, under the mortgage. Though the machinery was not nailed to the freehold, yet it was essential to the purposes of the #factory, and was so far attached to it, as was necessary for the use of the manufactory, which could not be enjoyed without it. In Heer-mance v. Vernoy, (6 Johns. Rep. 5.) the court inclined to consider a bark mitt as personal property; and in Elwes v. Maw, (3 East’s Rep. 38.) all the cases and authorities on this subject are so fully stated and examined, that it is barely necessary to refer to that case. Whether the machinery is to be regarded as real or personal property, it equally belongs to the plaintiffs. If it was real property, it passed under the mortgage ; if personal property, it was transferred, by delivery to the plaintiffs, before the sale under the execution.
    2. The plaintiffs showed a sufficient -possession, and a taking out of their possession, to maintain this action. A constructive possession is sufficient in trover, which is analogous to replevin. (Bristol v. Burt, and Shotwell v. Few, 7 Johns. Rep. 254. 302.) Replevin lies for any tortious or unlawful taking of goods, (Pangburn v. Patridge, 7 Johns. Rep. 140.) Again; Trask and Wilcox, as tenants at will of the plaintiffs*, were in the actual possession of the property; and which must, therefore, be deemed the possession of the plaintiffs. A constructive possession of personal property is sufficient to enable the plaintiff to maintain trespass. (Putnam v. Wiley, 8 Johns. Rep. 432. Campbell v. Arnold, I Johns. Rep. 511.) A, constructive possession is a right of present possession. (1 Term Rep. 480. 4 Term Rep. 489. 7 Term Rep. 9.) A felonious taking from a person in the constructive possession of a chattel, is larceny. ■ (1 Hawk. 35. 136. note. Kelyng’s Rep. 81, 82. Coup. 294. 296. Leach’s Cases, 242. 349.) Having the goods is sufficient evidence of the taking, in replevin. ( Walton v. Kersop, 2 Wils. 355.) There was, therefore, sufficient evidence to authorize the jury to find a taking, on the issue of non cepit. (1 Chitty PL 159.)
    But it will be said, that replevin will not lie for any thing fixed to the freehold. (Niblet v. Smith, 4 Term Rep. 504.) True, if the thing is a fixture at the time the action is brought; but, if it is then severed from the freehold, it becomes a personal chattel, and replevin lies. If a stranger cut down a timber tree, during a term, the lessor may maintain *trover for it against him. (Berry v. Heard, Cro. Car. 242.) This doctrine was recognized in Gordon v. Harper, (7 Term Hep. 13. Per Lawrence, J.)
    Again ; it will be said, that the right of the plaintiff was devested by the sheriffs sale. If the property was personal, the sale was void, being six miles distant from the place where the property was, and not in the possession or view of the sheriff. (Sheldon v. Soper, 14 Johns. Hep. 352. 2 Johns. Ch. Rep. 312, 313.) The sheriff never did, in fact, levy on this property, under the execution on which it was sold.
    Further; the sale was fraudulent and collusive.
    
      Marcey, contra,
    insisted, that the machinery was so attached to the freehold as to become realty. The general rule of law is, that whatever is fixed to the freehold, becomes part of it, and cannot be taken away. It is true, that exceptions to this rule have, of late years, been made, as between landlord and tenant, and in favor of trade; (Bull. N. P. 34. WoodfaWs Tenant’s Law, 280. 288.) but the policy which has given rise to these exceptions does not apply to the present case. The ancient rule still exists, as it does between heir and executor, and is to be applied. In Heermance v. Ver-noy, the bark mill was excepted, at the time the freehold was sold ; besides, the court did not think it. necessary to decide the general question as to its being a fixture. If, thee, the machinery is to be deemed real property, replevin will not lie. (1 Chitty PL 157.) But this action is said to be analogous to trover. A tortious taking is necessary to maintain replevin, which is much more analogous to trespass than trover. Now, trespass wall not lie, in regard to real property, unless the plaintiff is in the actual possession at the time the injury was committed. There is no constructive possession in such case. . (1 Chitty PI 177.)
    Again ; the plaintiff cannot set up a title to this property under the mortgage, in order to defeat the sale under the execution, for, in respect to the judgment creditors, it was fraudulent. The surrender or delivery of the property by Chapman was fraudulent, as against those creditors who had #issued executions. His interest or equity of redemption might be sold under the executions in the hands of the sheriff. lie had nothing, then, to deliver up to the plaintiffs.
    To support the action of replevin, there must be a talcing of the goods out of the possession of the plaintiff. (Shannon v. Shannon, 1 Schoales &f Lefroy, 324. 7 Johns. Rep, 140.) It must be a real, not an equivocal possession.
    As to the objection to the mode of sale under the execution : If it was real property , it was not necessary that the sale should be on the spot; and if it was personal, considering its nature and situation, and the levy made, it was not requisite that it should be removed to Troy, and be present at the time of sale, After the sale of land under an execution, the defendant in the execution becomes quasi a tenant at will of the purchaser. (Jackson v. Sternberg, 1 Johns. Cas. 153. 3 Caines, 188.)
   Platt, J.,

delivered the opinion of the court. If the articles of machinery in question be regarded as real estate, then, undoubtedly, the plaintiffs, as mortgagees in possession, before the sale, had a rightful possession ; and the defendant, as purchaser under a junior judgment, had no right to take the machinery away. By the severance, the machinery became the personal property of the plaintiffs, who owned the realty from which it was severed; it is, therefore, a proper subject of re-plevin, though it may have been part of the freehold, whpn it was sold by the sheriff.

Upon examination of the authorities, so fully collected and so well summed up by Lord Ellenborough, in the case of Elwes v. Maw, (3 East’s Rep. 28.) I am of opinion that the spinning frames and carding machines, situated as they were, are personal property; if so, then the two frames for spinning flax, which were not included in the mortgage, were bound by the execution which was delivered to the sheriff, four days before they were delivered and pledged to the plaintiffs, as security for their debt. The levy of the execution was sufficient. After having levied on goods with one fieri facias, if the sheriff receives a second fi. fa., the first levy is sufficient for both executions.

*But I incline to the opinion that the sale on the fieri facias was irregular and void ; because the sheriff sold the machinery at Troy, six miles distant from the place where the property was at the time ; and because he sold the factory and machinery jointly together, without any discrimination. In Sheldon v. Soper, (14 Johns. Rep. 352.) the court said, “The sheriff did not even know the goods, or pretend to sell them specifically, and to sanction such sales would open a door to innumerable frauds.” The same general principle, in order “ to guard against fraud, and to preserve fairness and integrity at public auctions,” was laid down in regard to the sales of real property by vague and general description, in the case of Jackson, ex dem. Jones, v. Striker, (1 Johns. Cas. 287. See also Woods v. Morell, 1 Johns. Ch. Rep. 502.)

Independently of the latter objection to the sheriff’s sale, the plaintiffs would be entitled to recover for the one frame for spinning tow, and the two carding machines, the title to which was vested in them long prior to the judgment of Hudson against Chapman, whether it be regarded as real or personal estate ; and on the ground of the objection to the mode of sale under the execution, I think the defendant acquired no right to the two frames for spinning flax. The court are, therefore, of opinion, that the plaintiffs are entitled to judgment for the whole machinery, according to the verdict.

Judgment for the plaintiffs, 
      
      
         Vide Linnendoll v. Doe, 14 Johns, Rep. 222. Haggerty v. Wilber, 16 Johns. Rep. 287.
     