
    
      J. S. Bratton v. W. J. Clawson.
    
    
      A cotton-gin in its place, i. e. connected with the running works in the gin-house,. is a fixture that passes to the purchaser of the house.
    Where an action of trespass, for carrying off a gin, was brought by a plaintiff who had purchased, at Sheriff’s sale, the land upon which stood the gin-liouse, with the gin attached in the usual way, by a band, without proof of notice that the gin was excepted or severed from the house, and where the defendant had purchased the gin as a moveable, the former owner (defendant in execution,); having directed the Sheriff to levy on the gin separately, and given bond for its delivery — the Court held, that such direction and conduct, on the part of the said defendant in execution, was merely inchoate, and did not amount to a practical severance of the gin from the rest of the machinery, so as to make it personal property, and no longer a fixture passing with the house.
    
      Before Mr. Justice Richardson, at York, Spring T, 1848.
    This case was before the Court of Appeals last term, and the plaintiff’s title to the gin-house settled. This was an action for^Hing a gin, Dutch fan and thresher, found in the gin-hous^B>ught at Sheriff’s sale by the plaintiff.
    Aftejafflre evidence of the sale of the land to the plaintiff had bSn given, and the decision of the Court of Appeals as to the boundaries of the Sheriff’s titles, the defendant’s counsel conceded the legal right of plaintiff to the gin-house, but ■contended that the gin, thresher and fan did not pass with the gin-house and land, being personal property.
    The presiding Judge charged the jury that the thresher ■and fan were personal property, and the plaintiff could not recover for them; but that the gin was clearly a fixture, and had passed by the Sheriff’s title to the plaintiff. That both ■this point and the boundaries of that title included the gin-house, and of course the gin itself, had been settled in the •decision of the Court of Appeals, unless the additional evidence now adduced had shown that the gin had been severed from the gin-house before the sale of the land to the plaintiff. If so severed, the plaintiff, .could not recover for the trespass in taking it away. But his own opinion was, that no severance was proved. The additional evidence on the part of the defendant must therefore be set forth.
    
      Fi. Fa. William Polck v. R. Strait — Levy, 10th February, 1847 — Crossland v. R. Strait, 24th December, 1846, bought one cotton-gin and thresher — sold 2d March, 1847.
    
      A. G. Mathis proves bond of Strait & , to Sheriff, to deliver the cotton-gin, fan and thresher, 24th December, 1846. Sheriff levied from a list of articles offered by Strait; did not see them. The argument on the part of the defendant was this: That inasmuch as Strait had sanctioned the levy on the gin, and given bond for the delivery to the Sheriff, this amounted to an actual severance, although the gin had not been moved from the rest of the machinery. Whereas the Court held that there must first be an actual practical severance — otherwise, it would operate as a fraud upon the purchaser of the land and gin-house, with its fixtures.
    See plaintiff’s second and third grounds of appeal.
    The defendant appealed, and moved the Court of Appeals, for a new trial, on the following grounds, viz :
    1st. Because his Honor erred, as the defendant supposes,, in his charge to the jury, in saying to them that all the questions now made were fully and completely settled by the opinion of the Court of Appeals in this case.
    2d. Because his Honor ruled, and charged the jury, that there was no severance of the gin from the freehold before the sale of the land to the plaintiff, but only an intention to' separate the gin. Whereas, the defendant submits that there-was legal severance, by the acts of the Sheriff, who made the levies on the gin and the land, and the defendant in execution, Richard Strait, as the gin was levied on and bond given for its delivery to the Sheriff, on 24th December, 1846, and the land was not levied on until 10th February, 1847 ;• and the land was advertised to be sold at York Court House on 1st March, 1847, ’and the gin at the defendant’s, Richard Strait’s, on Tuesday, 2d March, 1847.
    3d. Because his Honor erred, in charging the jury, in saying to them it would operate as a fraud upon the plaintiff, if he were not permitted to recover for the value of the gin: whereas, the defendant submits that it would operate as a legal fraud, at least, on the defendant, Richard Strait, and his creditors, if the plaintiff was permitted to recover.
    4th. Because it is clear, from the whole facts of the case, that it was not the intention of the Sheriff to sell the gin with the land, nor did the plaintiff bid under the impression he was purchasing the gin, and therefore he ought not to recover its value.
    WITHERSPOON, for the motion.
   Richardson, J.

delivered the opinion of the Court.

This was an action pf trespass for carrying off a gin¡ a Dutch fan and thresher, from the gin-house of the plaintiff. The only dispute was upon the trespass in taking the gin. The gin was attached to the running machinery, in the usual way, by a band. The plaintiff had purchased the land, on which the gin-house stood, without any proof of flotice to him, that the gin .or the fan, or the thresher, which also lay in the gin-house, were excepted, or severed from the house. On the other hand, the defendant had 'purchased the gin, fan and thresher, as moveables, and took them from the gin house. As to the fan and thresher] they v were his. But to which of the two purchasers did the gin belong? was the question. That a cotton gin in its place, i. e. connected with the running works in the gin-house, is a fixture, that passes to the purchaser of the house, was before decided in the very case. ..The same law of fixtures was before laid down in' Fairis v Walker, 1 Bail. 540. The only question therefore remaining open was this : Inasmuch as Mr. Stait, the former owner of the gin-house, bad directed the Sheriff to levy on the gin, together with the fan and thresher, and given bond for the delivery, whether such direction and conduct on the part of Stait, amounted to a severance of the gin from the rest of the machinery, so as to make it personal property and no longer a fixture passing with the house. This was the question made and decided by the jury. There can be little question that the owner might have disconnected the gin, the wheels, and the entire machinery, and thus converted them, as they once were, again into personal property. In like manner a man might convert the doors and sashes, and even the bricks and boards of his house into personal property. But unless he has practically done so, the right in the purchaser to all such things as stand in their usual connection with the freehold purchased, is not to be questioned. If the mere thought or 'will, or any inchoate arrangement of the owner, so to do, were to be received as the act itself, frauds would follow. One might purchase .a lot with a fine house on it, and find the windows, doors,-sashes, mantle pieces and so on, although all in their proper places,, converted into personalty, or moveables, and his house dismantled, by the will of the seller. Not so, is the law. The intention, without the corresponding action, is unconsequéntial and leaves the house, in law, as it stands in fact. The motion is dismissed.

O’Neall, J. Evans, J. and Frost, J. concurred.

Motion dismissed.  