93 P. 38 | Mont. | 1907
delivered the opinion of the court.
In September, 1901, Tony Gerarci was the owner of a certain two-room frame dwelling-house, which he had purchased from H. L. Frank. "The house was sold to Gerarci separate from the ground upon which it stood, and he immediately started to r¿move it to another location. One H. II. Smith thereupon wrongfully, without Gerarci’s knowledge or consent, took possession of the house and moved it about, and finally located it at 132 West Platinum street, in Butte, partly upon ground purchased by him from Hayes Cannon, and partly upon land belonging to Gannon. In July, 1902, Gerarci commenced an action in claim and delivery against Smith and others to recover possession of the house. This action was not finally determined until 1904, when Gerarci recovered judgment for the possession of the house or its value. In the meantime, in 1903, Smith and Cannon sold to John Eisenhauer the land upon which the house then
In deciding the ease the court said: “When Smith attached Gerarci’s house to his (Smith’s) realty it became a part of the freehold and passed to Eisenhauer on sale and conveyance to him by Smith, Eisenhauer being a bona fide purchaser without notice.” In passing upon the motion for a new trial, however, the court held that when Smith seized the house, Gerarci should have asserted his right and should have prevented Smith from attaching the house to Smith’s realty, and, after Smith had so attached it, Gerarci should have taken possession of it in his claim and delivery action, or should have filed a notice of lis pendens, and having failed to do any of these things, after Smith had sold the property to Eisenhauer, Gerarci was estopped to assert his claim of ownership as against Eisenhauer.
These questions only need to be determined: (1) Where Smith tortiously attaches Gerarci’s house, which was then a chattel, to land belonging to Smith and Cannon, by placing it upon a stone foundation, does the house thereby become a part of the real estate as between Gerarci and Eisenhauer, so that by deed of land with its appurtenances and improvements Smith and Cannon could convey to Eisenhauer a title to the house sufficient to defeat Gerarci’s claim to the house itself? (2) Is the defense that he was a bona fide purchaser for value, without notice, available to Eisenhauer as against Gerarci,' the holder of the legal title to the house in question? (3) Is the defensé of an estoppel available to Eisenhauer? And (4) does the com
1. Upon the first proposition many decisions are cited by counsel for the respective parties, all bearing somewhat upon the general proposition, but, with a single exception, presenting facts so different from those in the ease now under consideration, that they do not render any aid in reaching a solution of the question before us. The exception noted is the ease of Shoemaker, Miller & Co. v. Simpson, 16 Kan. 43, which is somewhat analogous to the case before us. Shoemaker, Miller & Co. owned certain bars of railroad iron, or rails, near Wyandotte, Kansas. Simpson owned certain city lots in Lawrence. The Kansas Pacific Railway Company wrongfully took Shoemaker, Miller & Co.’s rails, hauled them to Lawrence, and with them and cross-ties laid a track over Simpson’s lots for the purpose of hauling sand. The rails were taken without the knowledge or consent of Shoemaker, Miller & Co., and placed on Simpson’s lots without his consent. Shoemaker, Miller & Co. brought an action in replevin against Simpson to recover the rails.. Simpson defended upon the theory that when the rails were fixed to the cross-ties imbedded in his land, they thereby became a part of his real estate. The trial court found for the defendant, but on appeal the judgment was reversed, the supreme court saying, among other things: “We know of no way by which an innocent person can be permanently and legally deprived of his property against his will by the wrongs and trespasses of others, so long as it remains within the power of such innocent person to reclaim his property without committing any serious or substantial injury to the person or property of any other person.” And again: “But we do not Brink that any innocent person can be deprived of the title of his personal property against his consent by having it attached without his consent to the real estate of another by a third person, where such personal property can be removed without any great inconvenience, and without any substantial injury to the real estate.”
With the exception of property taken by judicial process, no one can be deprived of property to which he has the legal title, without his consent, unless he has estopped himself to assert his title. And where A attaches B’s chattels to A’s realty wrongfully, and without the knowledge or consent of B, B may maintain replevin, or claim and delivery, to recover the same, if the chattels can be identified. (Bronson on Fixtures, 351; 13 Am. & Eng. Ency. of Law, 2d ed., 681; McDaniel v. Lipp, 41 Neb. 713, 60 N. W. 81.) There is no question but what the property in this instance was sufficiently identified by Gerarei, even though certain changes had been made in it after it left his possession.
Under the facts disclosed by this record then, we hold that Gerarei did not lose title to his property by reason of the tortious acts of Smith; and this is true whether Eisenhauer had knowledge of Gerarei’s claim at the time he purchased the property or not.
2. But particular stress is laid by respondent upon the proposition that he was an innocent purchaser for value, without notice of Gerarei’s claim. This contention, however, cannot prevail. Gerarei had the legal title to the house. Smith had not any title-at all. It is a general rule in this country that, in the absence
3. In denying the motion for a new trial the district court held lhat Gerarci had estopped himself to urge his title to the property, and in making the order said: “But for estoppel, I am of the opinion Gerarci would be entitled to recover even from Eisenhauer, a bona fide purchaser.” This position, however, is altogether untenable. Gerarci in his complaint in intervention set forth his claim to the property, and recited at length the history of his litigation with Smith concerning it. Eisenhauer answered this complaint, but, though he had ample opportunity to do so, he did not plead an estoppel.
In Capital Lumber Co. v. Barth, 33 Mont. 94, 81 Pac. 994, this court announced the rule as follows: “It is the general rule that matter of estoppel, to be effective, must be alleged. Where, however, there has been no opportunity to allege it, it may be given in evidence with the same conclusive effect as if alleged. In Isaacs v. Clark, 12 Vt. 692, 36 Am. Dec. 372, it is said: £It is no doubt true that where the party has an opportunity to plead the estoppel he is bound to do it, and if he omits it, the jury will not be bound by the estoppel, but may find according to the facts. If, however, there has been no opportunity to plead the matter as an estoppel, it may, in general, be given in evidence, and it will have the same conclusive effect as in cases where it is pleaded. This is according to the current of the authorities, though they may not have been entirely uniform.’ ” However effective an estoppel might have been, if pleaded and proved, it is not available to Eisenhauer in this instance, since he did not plead it.
4. Appellants contend that the complaint does not state facts sufficient to constitute a cause of action for an injunction. Yrhile
In Wilson v. Harris, 21 Mont. 374, 54 Pac. 46, this court said: “If plaintiffs had a plain, adequate and complete remedy at law, a court of equity should refuse to take jurisdiction; and, indeed, it would be without jurisdiction, for equity may act in those matters only in which no remedy is afforded in the ordinary course of law, or in which the remedy at law is deficient.” (See, also, McCormick v. Riddle, 10 Mont. 467, 26 Pac. 202.)
The judgment and order are reversed, and the cause remanded, with directions to grant a new trial.
Reversed and remanded.
