
    Eddy v. Hall.
    A frame building erected upon and attached to the realty and used as a tannery, held in this case to be real estate and not repleviable.
    
      Error to District Court of Weld Cotmty.
    
    Sarah E. Eddy, the plaintiff in error, brought her action in the District Court of Weld county, to recover possession of certain property. The complaint alleges that the plaintiff, “Onand prior to September 1st, 1878, was the owner of, and entitled to possession of, the following described personal property, goods and chattels, of $550 value, to wit: One frame building, formerly used for the purpose of a tannery by the defendant (Eli Hall) and one James H. Johnson, as partners, under the firm name of Hall & Johnson; also, one steam engine and boiler, in said building; also, 50 buffalo robes and 28 pairs of mittens, more or less; also, all belting, shafting, pulleys, utensils, tools, vats, pumps, and all other apparatus used by said Hall & Johnson, in said tannery, and about said building.
    Defendant wrongfully holds and possesses above described property, and without plaintiff’s consent, now detains the same from her possession.
    On July 19th, 1879, plaintiff duly demanded of defendant possession of said goods, etc., but he refused and still refuses to deliver the same, and still unlawfully withholds and detains the same from plaintiff, to her damage in the sum of $550, value thereof, and further sum of $100 for detention thereof.
    Demand of judgment against defendant for recovery of possession of said goods and chattels, or for $550 in case a delivery cannot be had, together with $100 damages for the detention thereof and costs.”
    The defendant demurred, the demurrer was overruled, and the defendant answered over. The answer denies ownership in plaintiff of the following property, mentioned in complaint: “ Building, steam engine, boiler, belting, shafting pulleys, vats, pumps, and other apparatus, machinery or fixtures attached to such building mentioned in complaint, or any part thereof. Denies that on April 1, 1878, or at any time since, the above was personal property, but from a time long prior to the day aforesaid it has been and still is a part of the realty formerly belonging to defendant, but since and now belonging to one Jacob Hoover.”
    Avers that defendant does not hold or possess such property of plaintiff, nor has she any right thereto.
    And that plaintiff did not, on July 19,1879, or at any other time, demand possession of such property, otherwise than that she made demand for it “as the owner thereof,” and that he refused to deliver the same.
    The cause was tried by the court, and in support of her case the plaintiff offered in evidence the following agreement:
    “ Articles of agreement, made the 23d day of October, 1875, between Eli Hall and J. H. Johnson, both of Greeley, Weld county, Colorado, witnesseth:
    Said parties have agreed to become co-partners in business, and by these presents do agree to be co-partners, under and by the name or firm of ‘ Hall & Johnson,’ in the tannery business, but more particularly the manufacture of buffalo robes and other skins, * * and occupy all that is needed for said business of Lot No. 8, of the N. W. J S. E. J- of Sec. 6, T. 5, N. E. 65 W., in said town of Greeley, for which said Eli Hall is to be paid therefor a rental of $2 per year.
    The partnership to commence on the said 23rd day of October 1875, and to continue five years.
    The buildings now on said lot, to be used in the partnership business, are 14 by 20 feet in size, with lean-to addition 12 by 14 feet, which, with the' tools used therein, including the use of a patent stretcher and knife, amounting to $266.75 in value, is furnished by said Eli Hall for the use of the firm, which amount of $266.75 is to be credited on the firm books to said Eli Hall, and on the termination of this co-partnership said Hall is to take back said buildings at the samé price, less the wear and damage. * * *
    Eli Hall. [seal.]
    J. H. Johnson, [seal.] ”
    The plaintiff also offered in evidence a deed of trust dated March 7, 1877, from Eli Hall to B. F. Marsh, trustee, to secure a certain note, conveying, among other property, lot 8 above mentioned “ excepting and reserving from said lot 8 the tannery building erected thereon.”
    James 0. Scott testified : “ This deed was signed in my presence. Defendant said at the time the building was reserved because company property, and not his individual property. I was negotiating the loan, and wanted all the buildings on the lot; but Hall objected, and said it was not his property. The building in controversy is upon that Lot 8, and described in the partnership agreement and trust deed.” The plaintiff then offered in evidence a bill of sale, in substance as follows : (
    “ In consideration of $1,000, Hall & Johnson grant and convey unto Emerson & West, all and singular, the tannery building and engine, and all the machinery and tools used in connection with the business of tanning, situate on Lot 8, N. W. i S. E. J, Sec. 6, T. 5, N. R. 65 W., known as Hall & Johnson’s tannery, * . * * and all the property and effects of every description belonging to said Hall & Johnson, and appoint Emerson & West irrevocably their attorneys, to do all acts necessary to recover all of said property, and vest the same in them ; to have and to hold, unto Emerson & West and their assigns forever. Dated and sealed March 25,1878; signed and sealed by Eli Hall and J. FI. Johnson.”
    The bill of sale contained the following indorsement :
    “For and in consideration of $1,000, Emerson & West sell and assign all the within described property, and all their interest in the same, of whatever nature, on August 3, 1878, to Sarah E. Eddy.”
    
      Upon cross-examination Scott testified :
    “ It seems to me the tannery building, referred to in the co-partnership articles, had been erected before their execution, but I don’t remember distinctly. My impression is, Hall was carrying on the business there before, himself.”
    The plaintiff also offered in evidence the following instrument signed by Hall & Johnson.
    “ On this March 11, 1878, the undersigned members of the firm of Hall & Johnson, Greeley, Colorado, have adjusted their individual accounts in the firm, and find the firm owes to J. H. Johnson, to cash paid for firm debts, $2,598.99; and that the firm in like manner owes Eli Hall, for cash paid for firm debts, $401.26; that J. H. Johnson has paid over Eli Hall, of firm debts, $2,197.73, and the amount of this sum which Eli Hall owes J. H. Johnson is $1,098.86-|-.”
    George H. West, called on behalf of the plaintiff, testified: “Am a banker, and with Charles Emerson compose Emerson & West. I signed the firm name to the transfer on back of bill of sale. The sale from us to her actually took place, as that assignment purports to show. We paid $1,000. to Hall & Johnson, and received the property per bill of sale. We received $1,000 in cash from plaintiff for our sale to her of this property.
    Hall had been using the tannery building, being near his residence, for certain purposes, and wished to continue that use. Gave him permission to do so, but told him I should hold him responsible for the property in building. Gave him the key, that he might have access to it. Told him he might so use it until we made some disposition of the property. Prior to the payment of $1,000 to Hoover by the sale to us, Hall & Johnson owed him and wished him to take all the property mentioned in bill of sale for $1,000 to be applied on indebtedness to him. Hoover finally decided not to take the property. The real estate was never in consideration in these negotiations. Over and over again it was stated the real estate was Mr. Hall’s, but the building was the firm property.
    
      These negotiations were through Mr. Freeman as Mr. Hoover’s agent, who knew we paid $1,000 on account of Hall & Johnson.”
    George B. Wyman sworn: “Am a carpenter and builder. I helped to build the addition to the old part by Hall & Johnson. Th ey were getting ready for business. Put on an L to the old building. It is a frame. My recollection is that the addition was placed on brick.”
    On cross-examination the witness testified that in the new part of the building “ large excavations had been made in which th e tannery was carried on.” Demand and refusal were shown, and it appeared that the sheriff delivered the building by turning over the key to the plaintiff. •
    The defendant offered no evidence, and thereupon the court rendered judgment to the effect following:
    “That plaintiff is entitled to all property mentioned in complaint except the. tannery buildings, and one cent damages for detention; that she have and detain the same, and have execution for damages and costs. The right of property in said tannery building is not hereby determined, the same being real property, and it is considered by the court the plaintiff have leave to prosecute any appropriate civil action for the recovery of any right, title, or interest which she may have in and to the said tannery building mentioned in her complaint herein, or for the value thereof, without being prejudiced by this finding or judgment.”
    To reverse this judgment the plaintiff prosecutes this writ of error.
    Messrs. Haynes, Dunning & Haynes, for plaintiff in error.
    Messrs. Thomas George, J. M. Freeman and Blood & Bartels, for defendant in error.
   Elbert, O. J.

At the date of the sale to Emerson and West, the defendant Hall was the owner of the lot on which the building' in controversy stood. It ■ does not clearly appear how the building was attached to the realty, but it is prima facie real estate, and that it was attached in some permanent manner at the date of the sale is conceded by the argument.

The plaintiff in error relies on a constructive and not an actual severance.

The parties evidently contemplated the sale of the building without the land, and its severance and removal therefrom. The effect of the sale was to give Emerson and West, or their assigns, the right to enter upon the close of the defendant, to sever the building therefrom and remove it as personal property. Shaw v. Carbray, 13 Allen, 464; Tyler on Fixtures, 731, and cases cited.

Upon the subsequent refusal of Hall, the owner, to permit the severance and removal of the building, the plaintiff had her remedy, but it was not replevin. The court below correctly held that replevin would not lie. The building was real estate, and as such not repleviable. The agreement of the parties did not, as is insisted, operate to give it the character of personalty prior to severance.

We do not see that the ease is in anywise different in principle from the case of a sale of standing timber to be cut and severed from the freehold. When severed, the trees become personalty and not before. Claflin v. Carpenter, 4 Met. 580; Lawson v. Patch, 5 Allen, 586.

Nor do we find anything in the co-partnership agreement of Hall & Johnson, touching this building that changes the result. At the date of their articles of co-partnership, Efall was the owner of the freehold, and the building was already erected upon, attached to, and a part of the realty, and so remained during the continuation of the co-partnership. Thus, the true character of the sale to Emerson and West remains unaffected as a sale of a building affixed to the realty, with the right to sever and remove it.

Judgment of the court below is affirmed with cost.

Affirmed.  