
    John H. Ashmun et al. versus Eliphalet Williams et al.
    
    Where a town-house was erected on land of the town under a contract with the builder that the town should occupy part of it at a certain rent, and should have the right to purchase the house at an appraised value, it was held, that the house was the personal property of the builder, but that an attachment of it in the man net* in which real estate is attached, no actual possession being taken by the officer, was valid.
    In a case stated it was agreed, that in 1823, the town-house in Northampton having been destroyed by fire, Isaac Damons made different propositions in writing to a committee of the town, on the subject of rebuilding it. The town voted to accede to one of those propositions, namely, that he would erect a town-house partly on the ground on which the former one stood, of the dimensions and in the manner therein stated, the town to have the exclusive use of the hall and lobbies for the yearly sum of 170 dollars, and that whenever the town should choose to own the whole building, he would convey the same to the town at such price as the building should be appraised at by three disinterested men. But though in pursuance of the new contract the town-house was rebuilt, and the town have ever since occupied the second story under the proposition to which they had so acceded, and have regularly paid the stipulated rent therefor, such contract was never formally reduced to writing.
    The fee of the land was to be considered, for the purposes of this action, as in the town.
    In August, 1828, the town-house was attached, on divers writs, as the property of Damons, the officer taking no actual possession and putting no person into the actual custody of the property, but proceeding precisely as though the property had been the debtor’s real estate. In October, Damons, being in failing circumstances, assigned the town-house as personal property to the plaintiffs, who took possession of it under the assignment, thenceforward leaving it in the situation in which they found it, and giving no notice of its conveyance to them by Damons. And in November he conveyed the same property in mortgage, by a deed duly acknowledged and recorded, to the defendants aH J. D. Whitney, one of the plaintiffs, neither of the defendants having any knowledge of its previous conveyanee to the plaintiffs ; and afterwards, in January, Damons released all his interest in the property to the defendants and Whitney for the benefit of Damons’s creditors.
    The town having purchased the town-house, the question arose, to whom the purchase money belongs ; whether to the attaching creditors, the assignees of the personal property of Damons, or the assignees of his real estate.
    If the Court should be of opinion, that the property was held by the attachments, or rightfully belonged to the defendants and Whitney under the conveyance to them, the plaintiffs were to become nonsuit ; but if the property was not legally attached, and rightfully belonged to the plaintiffs under their assignment, the defendants were to be defaulted.
    
      J. H. Ashmun, for the plaintiffs,
    contended that the building could not be attached as real estate of Damons ; the attachment should be made by taking possession in some way at other ; perhaps putting a notice on the building would answer ; but merely returning an attachment upon the writ, is not sufficient in the case of personal property.
    
      Sept. 23d.
    
      L. Strong, contra,
    
    said it was not important whether the property was technically real or personal estate ; it was immovable estate and attachable without taking possession. It is however embraced by the terms real estate. 2 Bl. Com. 16; Bates v. Sparrell, 10 Mass. R. 323; Spear v. Bicknell, 5 Mass. R. 125; Strout v. Berry, 7 Mass. R. 385. The case of Perrin v. Leverett, 13 Mass. R. 128, is decisive of the one now under consideration.
    
      Ashmun, in reply.
    The building is not real estate. It cannot be set off on execution. If it is real estate, it is the real estate of the town, and can be attached as such, only in a suit against the town. The interest of Damons was not a chattel real. The case of Perrin v. Leverett, respecting a pew, is inapplicable. A thing is not real or personal property, merely because it is heavy or light; but the distinction rests on the circumstance, whether the title depends upon possession or record. The title to pews being evidenced by record, brings them within the rules respecting real estate, in regard to attaching and levying.
    
      Sept. 25th.
    
   Wilde J.

delivered the opinbn of the Court. This case is submitted to our determination on facts agreed, for the purpose of ascertaining the parties’ legal rights. Both parties claim under Isaac Damons, and we are first to inquire what was his right and property in the building in question, and what was the nature of his property. It was built and erected by him on land, the fee of which, it is agreed for the purposes ol this action, was, and still is, in the town of Northampton.

It was so placed with the consent of the town and in pursuance of a contract with them, which, although not formally reduced to writing, they are willing to fulfil ; so that no question is made whether the building belongs to the town as proprietori' of the land. In fact the town have since purchased the building, with the consent, we presume, of all parties interested, and this action is prosecuted for the purpose of ascertaining to whom the purchase money must be paid.

Upon these facts the first question made is, whether Damons’s property in the building was real or personal estate ; as to which we think there can be no reasonable doubt. It was not real estate, for he had no title to the land. This was vested in the town, and but for their contract, they could undoubtedly hold the building as appertaining to the realty. But they disclaim that right, and admit Damons’s right to the building, subject to the conditions and qualifications of his contract; and both parties stand on the ground of this admission. Damons’s property, therefore, if any he had, was personal estate; and there can be no doubt, we think, that one may own a building standing on the land of another with his consent, and may dispose of it, and it will be liable to attachment, the owner of the land interposing no claim.

The next question, and one of more difficulty, is, whether the attachments under which the defendants claim were valid, no actual and open possession of the property being taken by the attaching officer, but he having proceeded as though the property had been the debtor’s real estate.

Generally, attachments of personal property are not valid against subsequent purchasers, or attaching creditors, unless the officer takes possession of the property attached. But property of the nature of things immovable are not within the reason of the general rule, and are consequently to be excepted from its operation. The officer would have had no right to remove this erection, if the town had objected. Independent of the contract with Damons, it was a fixture and would pass with the land ; and under the contract the town had a right of preemption; so that the removal of the building was not authorized ; and besides it could not be removed without material injury. Under these circumstances the officer took all the possession which could have been usefully taken of the property attached. It was similar to the possession afterwards taken by the plaintiffs under their assignment, which, although not accompanied with any act of notoriety, was nevertheless sufficient to pass the property but for the previous attachments. Jewett v. Warren, 12 Mass. R. 300. Such a possession, we think, is sufficient also to support the attachments.

The - plaintiffs therefore, according to the agreement of the parties, are to become nonsuit. 
      
       See Marcy v. Darling, ante, 283; Mien v. Scott, 21 Pick. 28
     
      
       See Hemmenway v. Wheeler, 14 Pick. 310; Gordon v. Jenncy, 16 Mass. R. 465; Fettyplace v. Dutck, 13 Pick. 388. Provision is now made for the mode of attachment in such case, by Revised Stat. c. 90, § 33.
     