
    Thomas K. McClintock vs. James Graham.
    The doctrine of fixtuies is more rigorous in relation to claims between, heirs and executors, than between those of landlord and tenant and the tenant for life and the remainder man or reversioner.
    A Still, fixed in a rock furnace built against the wall of a house constructed for the purpose of distilling, is Dot a fixture, it seems, which passes with the land at sheriff sale, more especially as the previous owner of the freehold, himself, had made a severance.
    This was an action of Trover to recover a Still and vessels. The plaintiff claimed under a levy made by himself, while acting as sheriff of Chester distric*, against John 'l rus-sell. The execution on which the levy was made, had been previously levied on a tract of land, to-wit: on the 12th of July 1821. This levy not being disposed of, and the amount being under the summary process jurisdiction, on thelftfa August 1821, he levied on the Still and vessels. The plaintiff proved the value of the property and closed, the de-, mand and refusal being admitted.
    The defendant moved for a nonsuit, on the ground, that the second levy was void, in as much as the first had not been disposed of.
    The court refused the motion.
    Defendant then produced the sheriff’s title for a tract of land, sold by him as the property of John Trussell, and proved that the house in which this Still and vessels had been set up, was built for that express purpose, and that the Still had been set up in a rock furnace, which furnace was built against the waK of the house Upon which' defendant contended it became a fixture, and passed with the land at sheriff sale.
    The court permitted parol evidence to shew that when the land was sold, nothing was said about the Still, except to one witness, who bought, the tract of land, on which the still-house stood. Defendant objected to this evidence, but was overruled.The plaintiff, under the chargeof his honor*recovered. Defendant now moved for a nonsuit on the following grounds:
    1. Because the Still, being put upin a rock furnace in a still house, which furnace was against the wall of the building, and this put up by the owner of the land, it was a fixture, and passed with the land which defendant had previously bought at sheriff sale.
    2. Because, his honor charged the jury, ihat the appeal court had decided that plaintiff had a qualified interest in the Still and vessels.
    3. Because the court charged the jury that the maia question was, whether or not the purchasers at sheriff sale (Carter & McCalla,) considered that they were buying the still and vessels, when they bought the land; and if the Still and vessels were not sold to them, defendant could not retain them, as he bought of them.
    
      4. Because, the court charged the jury that the levy, as made under all the circumstances of the case, vested the property in the plaintiff, and that the appeal court had gone a great way to decide the case.
    
      Thomas Williams,
    
    for the nonsuit, argued, that the levy was void, and if so the plaintiff could not recover. To maintain such an action, the plaintiff must have an execution. He could not support the action from mere right of office. He had already levied on lands, and that levy was not disposed of: so that the levy on the personal property was void. A levy is prima facie evidence of satisfaction (Miller vs. Bagwell, ante. 429. J The recovery then must depend upon the gality of the second levy.
    He claimed a new' trial, because the house was built for the special purpose of a still-house; and the still was fixed to the wall in a stone furnace, and it was therefore a fixture. It was put up by the owner of the premises and not by a tenant, who, prima facie, intended leaving the place. Here the freeholder built for a particular purpose, and leaves the place, removing every thing but the still, which shewed he considered it a fixture. (6 Bacon, 174, Tit. Sheriff. 1 State Reports 415.)
    
    
      Mills, contra.
    The defendant comes as a trespasser, pretending no claim whatever. U was proved that the still had been advertised by itself, some time before the land was sold. The still was levied on before the sale of the land could have been made. It was before the sale day. Besides, the defendant owed more on executions in the sheriff’s hands, than all his property could have paid. ■ Admitting it was a fixture, the sheriff might sever, and having done so, his sale is good. .-{Hecited6Bacon,Sheriff, ¡74.) Hethoughtthe English doctrine of fixtures not applicable to this country, and was abolished by the act abolishing the laws of primogeniture. (He cited 3 East Rep. 38. 3 Bac. Tit. Exon. H. 4. 6 John. Rep. 6.7 Mass. Rep. 483. 17 John. Rep. 11G.J The still— jbotise was amere shed. Where a thing of this sort is put up for trade it is no fixture; otherwise when put up for the enjoyment of the freehold. (See 3 Ath. 12. The case of a cider-press.)
    Besides, third persons cannot take advantage of the irregularity of the proceedings, as to the levy. (8 John. Rep. 361. 1 Ñott & ./e ’ Cord, 408. , ' .
   ColcocKj'J.

The first ground, presents a question which is sometimes difficult of solution, and although not hitherto of frequent occurrence here, yet we may anticipate that we shall be called on more frequently to determine it, as we are daily resorting to the aid of mechanic power in our variou s pursuits. It is obvious that it must always be considered,first in relation to the article itself, to say if it be a fix- ■ ture, and if so, then in relation to the parties claiming the right. The question arises:

1st. Between landlord and tenant.

2nd. Between tenant for life and the reversioner or remainder man, and

3rd. Between heir and executor.

Lord Mansfield says, as to the two first classes of persons, the rigor of the ancient law has been greatly relaxed; though with respect to thei last, viz: heii’s, executors, &c he knows of no relaxation, except in a single case about a cider» mill, and that depending perhaps on the custom of the country (3 Ath. Rep. 14.) It is a general rule that an article which is fixed to the freehold, and becomes part of it, necessarily passes with it. Now in the case before us the first question is, was this a fixture? I cannot so consider it; because it is susceptible of being removed, without any injury whatever to the freehold or any part thereof; and even without disfiguring the premises, which it seems is sometimes made the criterion, and without digging up the soil, (3 Bacon, page 63,64)

It was a mere temporary thing, not.indispensably necessary to the enjoyment of the land, nor actually fixed to any part of the freehold. In those cases in which the article or building is indispensably necessary to tbe enjoyment of tbe freehold, as between executor and heir, I should hold there was no doubt but that it must pass. Rut all difficulty in this case must vanish when we cometo consider the question in relation to the parties claiming; as to them, it becomes a inere question of contract. McCalla the first purchaser from Trussel says, when he bought the land, the still was excepted, and Center, who sold to Graham says, he never heard a word about the still when he was buying, and did not consider himself as buying the still. Now whatever rights may be acquired by those who succeed, if, before they enter, the owner of the freehold himself makes a severance, there can be no room for doubt. rl he article in this case was reserved to Trussed, and consequently was subject to the levy made by the sheriff. And then the question arises, whether the levy made in this case did vest tbe property in the sheriff? It is admitted by the defendant’s counsel, that a sheriff does acquire a qualified property in personal goods by virtue of a levy; but it is contended, that as a previous levy is indorsed, on the execution produced in this case on a tract of land, and nothing is said on the execution as to that; that this affords proof that the subsequent levy was illegal and consequently could vest no right. The fallacy of such reasoning is easily detected; but before I proceed to shew it, it is necessary to advert to the situation of the parties. The defendant is sued as trespasser. There is no relation subsisting between him and tbe plaintiff in his official or individual character. He is a stranger to the plaintiff, and denies his right 1o the subject of the suit. The plaintiff produces an execution against Trussed the original owner oí the land on which this still stood, which gave him authority to -levy on the goods and chapels, &c. of the defendant. He levies on the land, and then on the still, and endorses the levies on the execution. Now it is well known that a sheriff may, and often does, levy on property which he finds incumbered, or claimed by third persons., h could not be said that in such case he is not permitted to levy again on other property; or if he thinks the property first levied on, is insufficient, lie may make a further levy. Such endorsement then is at least prima facie evidence of right in he sheriff; and if the land was sold by the sheriff, or the debt paid by the defendant, before the article in dispute was sold, the defendant must prove it; and he could prove it if it were so. Indeed, in the case before us, the objection loses all the force which it might have in ordinary cases; for here was Trussel himself the defendentinthe execution, a witness who could easily have proved whether the land had been sold, and for how much. There was then no evidence produced to invalidate the levy made by the sheriff, and the legal effect of that levy was to vest the still in him and give him a right of action against any stranger who should deprive him of the possession of it.

Williams, for the motion.

Mills, contra.  