Heermance v. Vernoy, 6 Johns. 5

Heermance v. Vernoy

6 Johns. 5 | N.Y. Sup. Ct. | 1810

Per Curiam.

By the evidence given for the plaintiff below, he sufficiently proved the trespass he had alleged; and if the two witnesses offered by the defendant, in his defence, were incompetent, by reason of interest, then the cause of action remained good. The two witnesses had jointly sold the land, on which the bark-mill stood, to the plaintiff, and they had sold the bark-mill to the defendant. They must have sold it as personal property, because the same was excepted by parol, out of the sale of the land, and sold by parol to the defendant. These we are to consider as facts, assumed and offered to be proved by the defendant, when he produced his witnesses. According to the doctrine, which is fully and learnedly discussed, in the case of Elwes v. Man, (3 East, 38.) it seems to be the better opinion, that the *8mill was personal property; for the millstone, with the ■ building covering it, was accessory to the tanning business, a matter of a personal nature. But it is not requisite to decide this point now. It is sufficient for the present case, to observe, that the defendant below considered the bark-millstone, with its iron fastenings, as personal property, by purchasing the same without writing, from a person who had already sold the land on which they were placed, to another, and made a paral exception of them, at the time of the sale. On the ground taken by the defendant himself, when he offered his two witnesses, they were incompetent. Every man is considered as warranting the title of personal property which he sells, though there be no express warranty for that purpose. The witnesses were then interested in defending the title set up by the defendant, as they stood behind him, and were responsible to him, if it failed.

The entry upon the land of the plaintiff was, at all events, a trespass; and if the defendant showed no title to the millstone, the taking it away was a. substantial injury, which well warranted the verdict, and the judgment below ought to be affirmed.

Judgment affirmed.