| Mich. | Oct 27, 1863
The bill in this cause was filed to obtain payment of the value of a saw mill frame, and of the sum of $1200 which had been paid by complainant’s intestate during his life, towards a steam engine and boiler designed to be put by him in a saw mill to be built on premises leased by him. The lease was made to James If. Bennett, “his •executors, administrators and assigns forever,” reserving no rent, but conditioned to erect and maintain a saw mill.
The material was mostly prepared by the lessee during his life, and the frame was put up immediately after his death. The engine was contracted for by him with defendant Nichols, and his partner, one Shepard, and was deliverable before Bennett’s death; and $1200 had been paid thereon,
The Court below declared Nichols personally liable for all of complainant’s claim, and made a personal decree against him for the amount, and gave a lien on his share of the premises to secure it.
We have not been able to discover upon what principle a court of equity can create a lien on real estate to secure a personal debt, not contracted on its credit, and not charged on it by agreement. There may be cases where, from the nature of the transactions between parties, rights spring up which ought to be held binding on specific property. No case like the one before us has been presented, authorizing such a lien to be declared, and no sound reason has been suggested requiring or permitting it.
We are inclined to think, on the facts as they now appear in proof, that the right existed in the representatives of James K. Bennett to remove the mill frame after his death. Such erections are not so attached to the freehold as to exempt them from the immunity of trade fixtures-And, except to a small amount, the material had not been put up before his death, and so remained entirely in the' shape of movable chattels, to which his title was clear. We have no doubt a right of action existed for the conversion of this property, against the wrongful appropriator.
We are also of opinion that a right of action existed against Nichols and Shepard, for any breach of their contract to complete and deliver the engine and boiler.
But these claims, as set up in the bill, and as proved, have no equitable nature. They are proper foundations for suits at law, and for nothing else. The remedy sought
It is claimed, however, that the defendants have, by answering on the merits without raising this objection, waived the right to take it. The objection was taken by demurrer, and the demurrer was overruled. An order overruling a demurrer is not a decree, and is not in any sense final; the practice requiring that the defendant answer over. No appeal can be taken from such an order, and the appeal from the final decree opens for review all the merits of the case.
But we think the complainant has also misapprehended the nature of the objection to his bill. Where a complainant seeks relief of an equitable character, on a case where there is also an adequate legal remedy, the party waiving this objection may be properly subjected to a decree granting the equitable relief prayed, if it is within the equitable, powers of the Court. The relief sought here is in no sense equitable relief. A bill to collect a promissory note would be precisely like it in principle. Such a jurisdiction should be rejected by the Court itself as not. within its legitimate province.
The decree must be reversed, and the bill dismissed,, with costs in both Courts, but without prejudice to any.” legal redress.