65 Ind. App. 492 | Ind. Ct. App. | 1917
This is an appeal from a judgment for $100, rendered against appellant by the Marion Circuit Court in an action brought by appellee before a justice of the peace of Hancock county, to recover damages for the alleged conversion of certain stone, bricks and building materials located on real estate in Hancock county, Indiana. The overruling of his motion for new trial is the only error assigned by appellant and relied on for reversal. The motion contains four grounds, but appellant in his brief asks this court to give its consideration to but one question, viz.:. “May a grantor of real estate under a general warranty deed containing no reservation, by parol, reserve a building which was originally constructed as a permanent accession to the realty, and which is still annexed thereto in substantially the same manner as when originally built?”
It is claimed by appellant that this question is presented by those grounds of his motion for new trial which respectively challenge the verdict as not being sustained by sufficient evidence and as being contrary to law, that the law requires a negative answer to said question, and that such an answer will necessitate a reversal of the judgment below. As we gather appellee’s contention from his briefs, he, in effect, concedes the correctness of the legal proposition for which appellant contends, and that it requires a negative answer to the question suggested, but insists that there was undisputed evidence showing that at least a part of the prop
The evidence pertinent, and necessary, to a correct understanding of the questions thus presented is to the following effect: In 1908 appellee bought certain lots from one Forkner. Subsequently, and about two years before his sale and conveyance to appellant, he bought from one Cook what remained of a glass factory on these lots. Cook had bought this building, apart from the lots, and had removed parts of it. In October, 1912, appellee owned said lots and building. At that time the building had been so wrecked that only part of the frame thereof, the ground floor of fire brick laid in sand, part of a second floor of wood, and a stone foundation for a part of the second floor, and some stone piers for furnaces remained. The siding, roof, part of a second floor, the doors and windows and their frames had been removed. Part of the frame had been removed, or had fallen, and was on the ground. The greater part of the frame, however, was standing. Appellee testified that this frame was made up of 2x4, 2x8, and 4x4 timbers nailed together. The stone foundation for a part of the building remained practically intact, except that a few stones had fallen therefrom and were on the ground. There were several stone piers which had supported furnaces. These furnaces had been removed, and the piers were more or less broken down, and stones had fallen from them. Some of the witnesses testified that the building rested on sills of large timbers, that there were walls for these sills, and that
Appellee in effect insists that this question requires an affirmative answer, and in support of his contention cites the following cases: Pea v. Pea (1871), 35 Ind. 387; Williams v. Frybarger (1893), 9 Ind. App. 558, 37 N. E. 302; Frederick v. Devol (1860), 15 Ind. 357; Rogers v. Cox (1884), 96 Ind. 157, 49 Am. Rep. 152; Young v. Baxter (1876), 55 Ind. 188; Harvey v. Million (1879), 67 Ind. 90; Heavilon v. Heavilon (1868), 29
While there is some conflict in the decided cases, we think few, if any of them, sustain appellee’s contention, or will permit an affirmative answer to the question last suggested. On the contrary, we think the weight of authority supports a negative answer to said question. In support of this conclusion, see Owens v. Lewis, supra; Armstrong v. Lawson, supra; Adams v. Tully, supra; Pea v. Pea, supra; Bailey v. Briant, supra; Binkley v. Forkner, supra; Meyers v. Schemp (1873),
We therefore conclude that the trial court erred in overruling appellant’s motion for new trial, and for this reason the judgment below should be and is reversed, with instructions to the trial court to grant a new trial, and for such other proceedings as- are consistent with this opinion.
Note. — Reported in 117 N. E. 550. Fixtures: agreements to prevent fixtures from becoming part of the realty, effect, 19 L. R. A. 441; tests for determining what are fixtures, 105 Am. St. 646. See under (2) 38 Cyc 2078; (3) 38 Cyc 2088; (4, 8) 19 Cyc 213; (5, 7) 19 Cyc 1036-1048.