
    John Wells & Al. versus Liberty Banister & Al., and Seth Banister, as their Trustee.
    Where a son had built a house on the land of his father, under an expectation that the father would devise the land to the son, the father is not answerable to the son, or to his creditors, upon a foreign attachment, for the value of the i ouse.
    A plaintiff is entitled to costs against the defendant, after a default, until the fina, decision, whether one sued as trustee of the defendant shall be held as such, or not.
    The supposed trustee, on his examination in the court below, disclosed the following facts, viz.: —
    
      “ About thirty-nine years ago, Seth Banister, my father, conveyed to me a tract of land in Brookfield, which I have ever since owned. About five years since, the said Liberty Banister, who is my son. requested my license to efect a dwelling-house and other accommodations on said land. I consented thereto, and at the same time, told him that at my decease, if I should leave any property to my children, I might probably bestow that part of my real estate upon him: but I made no contract or agreement, directly or indirectly, with my said son to convey said land to him, or to pay him for erecting said house and accommodations thereon ; nor did I ever expect or contemplate so to do ; nor did I ever desire my said son to build said house and accommodations ; nor have I any objections that whoever has a right thereto should remove the same, provided said land be left in as good a situation as it was before the said Liberty did any thing thereto.-1 do not absolutely know at whose expense the said buildings were erected, but suppose it to have been at the expense of my said son. They were erected before the service of the writ in this action upon me, and now remain on said land. I have never paid any body for said buildings;- nor did I ever engage or expect so to do.”-
    * Upham, for the plaintiff,
    suggested that the consent of the supposed trustee to have the house built on his land was sufficient to charge him on an implied promise; and if the son had a right of action against him for the materials and labor C* C> expended, he must of course be held as trustee.
   By the Court.

The facts disclosed by the person summoned as trustee in this case do not furnish a pretence for charging him. He is the owner of a tract of land, on which he had permitted the principal, his son, to build a dwelling-house for the son’s convenience and accommodation, under an expectation that the land on which the house was built, would by devise come to the son, at the death of the father. There was no contract, express or jmplied, that the father should own the house, or in any event be accountable to the son for the value of it. By the strict operation of the law, it is true that the father, having the property of the land, might disturb the son in the possession of the house, and, indeed, remove him from it. But it is not to be presumed that he would have taken this advantoge of his son; and he ought not to be made the owner of the house against his consent, by compelling him to pay the expense of building it.

The property of the house is personal property of the son, he having no estate in the land ; and the most that can be made of the consent of the father to build upon his land, is a right to occupy the land without rent; and perhaps a right in the son, or persons claiming under him by purchase or execution, to enter and remove the buildings, without being subject to any other than nominal damages in an action of trespass.

The supposed trustee must be discharged.

The principal debtors having suffered a default in the Common Pleas, Merrick, who had been of counsel for them, moved the Court for a direction to the clerk not to tax any costs for the plaintiffs posterior to the default.

By the Court.

The plaintiffs are entitled to their costs to the time of final judgment. The appeal of either of the parties sets the cause afloat. It was necessary to the plaintiffs to attend to the action until its final decision ; and it is reasonable that they should be allowed their costs so long as they were obliged to attend.  