14 N.Y.S. 339 | N.Y. Sup. Ct. | 1891
Lead Opinion
The defendants were the owners of a lot of land situated in the city of Auburn, about 4 rods in width, upon which there stood a frame barn 16 feet in width, and 24 feet in length. It was a small structure built upon stones sunk in the ground. It was not attached to the stones or the ground, and the evidence tended to show that it was so built that it could be removed without injuring the soil or disturbing the foundations upon which tt rested. Soon after Mrs. Robie Clough became the owner of this land she deeded to her daughter, Mrs. Gilbert, a portion of the lot, which conveyance included two-thirds of the barn. The grantor, Mrs. Clough, testified that at the time of the execution of the deed to her daughter, and after its delivery, the grantee stated: “Row, pa and ma, the barn is yours; there can nobody interfere. ” The grantee, Mrs. Gilbert, on this subject testified that on the same occasion she received the deed, she told her father and mother that the barn was theirs. After that-the grantors occupied the barn, and each grantee from Mrs. Gilbert had notice before they took a conveyance that the barn belonged to the defendants. In the case of the plaintiff, the evidence as to whether he received such notice was conflicting, but the jury found in favor of the defendants’ contention. It does not distinctly appear, nor is the point material, whether the original grantors and the grantee had an understanding or agreement, before the execution and delivery of the warranty deed, that the barn should remain the property of the grantors; but it does appear that immediately after its execution and delivery, and on the same occasion, the grantee stated to the grantors that the barn was theirs, which would naturally imply that there was either an express or implied understanding before the execution of the deed that such should be the case. The plaintiff’s contention is that the barn was a part of the real estate, and that it passed by the deed. This undoubtedly would be so, in the absence of facts showing a different understanding or agreement. In Ford v. Cobb, 20 N. Y., on page 348, the court say: “It will readily be conceded that the ordinary distinction between real estate and chattels exists in the nature of the subject, and cannot, in general, be changed by the convention of the parties. Thus it would not be competent for parties to create a.personal chattel interest in a part of the separate bricks, beams, or other materials of which the walls of a house were composed. * * * But it is otherwise with things which, being originally personal in their nature, are attached to the realty in such a manner that they may be detached without being destroyed or materially injured, and without the destruction of, or material injury to, the things real with which they are connected; though their connection with the land or other real estate is such that, in the absence of an agreement or of any special relation between the parties in interest, they would be a part of the real estate.” On page 349 the court say: “If the subject which would otherwise be real estate can be made personal by the creation of special relations between the. parties, it is clear that the same parties may effect the same thing by express agreement.” In Tyson v. Post, 108 N. Y. 217-221, 15 N. E. Rep. 316, the court say: “There can be little doubt, however, that the machinery, shafting, rollers, and other articles became, as between vendor and vendee, and mortgagor and mortgagee, fixtures, and a part of the realty. ” Citing McRea v. Bank, 66 N. Y. 489. “But as by agreement, for the purpose of protecting" the rights of vendors of personalty, or of "creditors, chattels may retain their character as chattels, notwithstanding their annexation to the land in such a way as, in the absence of an agreement, would constitute them fixtures, [citing Ford v. Cobb, supra, and Sisson v. Hibbard, 75 N. Y. 542,] so, also, it
Dissenting Opinion
(dissenting.) The action was for damage to the freehold by the removal from the plaintiff’s lot of a portion of a small barn which stood thereon. In March, 1884, the defendant Mrs. Bobie Clough became the owner, by warranty deed, of a lot of land four rods wide, situate on the east side of Morris street, in the city of Auburn, on which stood the barn in question adjacent to the north line of the lot. The deed was recorded soon after it was delivered. In April of the same year Mrs. Clough conveyed, by warranty deed, to her daughter, Mrs. Gilbert, the same premises, excepting and reserving therefrom a strip of land six feet wide along the north line of the lot, Mrs. Clough being then and now the owner and occupant of the lot next north of the strip reserved. The reservation included about one-third of the barn. The deed to Mrs. Gilbert was recorded within a few days after its date. In November, 1888, the plaintiff became the owner, by several mesne conveyances, of the premises so conveyed to Mrs. Gilbert. No one of