21 Ind. App. 46 | Ind. Ct. App. | 1898
Appellee was plaintiff below, and sued appellant for the alleged wrongful conversion of a certáin frame dwelling house. The issue was joined by a general denial, trial by the court, special finding of facts made, conclusions of law thereon, and judgment for appellee. The court found that appellee, on
The errors assigned are: (1) Overruling the motion for a new trial, and (2) that the court erred in its conclusion of law.
For a correct disposition of the controlling question in the case, we need only consider the assignment of error, calling in question the conclusion of law as stated by the court. From the finding of facts it is clear that appellee and her husband knew, before they placed the land in the hands of their agent for sale, that the house in controversy was not on the land owned by them, or either of them, but was on the land of Morrison. Notwithstanding this fact, they represented to their agent that the house was on this land; was a part of the improvements thereon; that it was so represented to Short, the purchaser, and taken into account in the sale to him. It thus appears, that while the house was not on the land owned by appel
But there is another reason why appellee is not entitled to recover under the facts found, and that is it is not shown that she was the owner of the dwelling house in question, or that she was entitled to the possession thereof. The findings show beyond all question that appellee erected the house on the real estate of Morrison, and that she intended that it should be a permanent fixture, and that it was to be used for a residence. The manner in which the house was placed on and attached to blocks can have no bearing in determining the question as to whether it must be regarded as personal or real property. The modern authorities no longer adhere to the doctrine that physical annexation is the proper criterion by which to determine whether a fixture is real or personal property. Atchison, etc., R. Co. v. Morgan, 42 Kan. 23, 21 Pac. 809; Meigs’ Appeal, 62 Pa. 28, 1 Am. Rep. 372. In the case of Binkley v. Forkner, 117 Ind. 176, the court said: “The united application of these requisites is regarded as the true criterion on an immovable fixture: (1) Real or constructive annexation of the article in question to the freehold. (2) Appropriation or adaptation to the use or purpose of that part of the realty with which it is connected. (3) The intention of the
This court in Parker Land, etc., Co. v. Reddick, 18 Ind. App. 616, by Robinson, J., quoted approvingly the rule laid down in Binkley v. Forkner, supra, and cited many authorities in support of it. We still adhere to that doctrine. Nor can the fact that appellee built the house on Morrison’s land by mistake, measured by the subsequent facts in the case, and the acts o'f appellee, change, modify, or abrogate the rule. In Seymour v. Watson, 5 Blackf. 555, 36 Am. Dec. 556, it was held that, where a fence was built by mistake on adjoining lands, where the party building the fence supposed he was building on his own land for the purpose of enclosing it, that the fence so built became realty and passed with the land. In that case it was said: “It is a general principle, that all permanent buildings follow the tenure of the soil on which they are erected.” See, also, Hamilton v. Huntley, 78 Ind. 521, 41 Am. Rep. 593. The house in question became a fixture to the freehold of Morrison. Under the findings there is no fact found which would change its character, and it clearly appears that appellee has not shown that she was either the owner or entitled to the possession, and hence she has shown no right to recover. The judgment is reversed, with instructions to the court below to restate its conclusions of law, and render judgment for appellant.