| Ill. | Apr 15, 1864
delivered the opinion of the Court:
This is an action of replevin, brought by the appellant for a dwelling house, alleged to have been wrongfully removed from a lot belonging to him, by the appellee. The pleas are non detinet, and property in the * appellee. On the trial, it was admitted that the appellant, in 1856, and from that time to the commencement of the suit, had been the, owner in fee of the lot from which the building was removed; and it appeared in evidence that while he was the owner of the lot, in 1856, he made a contract with one Schuster, to sell him the same for $525, of which $25 was paid in cash, and the residue was to be paid in five annual installments, the last of which fell due September 1, 1861. Four of the installments had become due, but only one of them had been paid. The contract provided that if the vendee should make default in any of the payments, tlie vendor should have the right to consider the agreement terminated, and to treat Schuster, his representatives or assigns, as tenants at will, at a specified rent.
In 1858 while Schuster was in possession of the lot under the contract, he and the appellee erected thereon a dwelling house, unddr an agreement that each was to own oñe-half of the same. The house was placed upon blocks, resting on boards, lying on the ground. For about two years after the house was finished, Shuster occupied it with his family, and in January, 1861, sold his share to the appellee, to whom he gave permission to occupy the lot until September, 1861. The house remained on the lot until June, 1861, when it was removed by the appellee. The appellant demanded possession of the house, and upon the refusal of the appellee to surrender the same, commenced this suit for its recovery. Upon the trial in the court below, the jury were instructed that the appellant was not entitled to recover. The general rule of the common law is, that things affixed to the realty become part of it, and belong to the owner thereof; but erections, which, from their general nature and character, are ordinarily deemed a part of the freehold, may be made in such manner, or under such circumstances, as render them distinct and separate property. In order to do this, the person making the improvement, must have the right to determine whether or not, the erection shall become a part of the realty; and it must appear that it was not intended to form a part thereof.
The intention may be inferred, in some cases, from the manner in which the improvement is attached to the realty; and in others from the nature of the title of the party making it, or from the purpose with which it was made; but if the party making the improvement, as between himself and the owner of the soil, has no right to erect the same, as property separate and distinct from the freehold, an intention so to do, no matter how clearly manifested, is of no avail. Schuster, at the time the dwelling-house was erected, was the vendee of the appellant, in possession of the premises under an unexecuted contract requiring him to pay for the land and make it" his own. He was in default for a part of the payments already matured, owing a greater portion of the purchase-money, and paying no rent for his occupation of the premises. His enjoyment of the property was solely by reason of his agreement to pay for the same; and the law will presume that he intended to perform his agreement in good faith. It may well be presumed that the vendor, relying upon the agreement, and the additional security of the improvements for its performance, allowed Schuster to remain in possession after default in making his payments; and while in the enjoyment of the property under such circumstances, he conld not, honestly, assert that he did not intend to perform his contract, and that he intended the erections on the lot as property separate from the freehold.
The law will not infer a dishonest intention, nor give effect to one when proven. The mode adopted in the construction of the foundation of the house would not, under the circumstances, show an intention on the part of the vendee to erect and maintain the same as property separate and apart from the realty. Having no right to claim that the improvements bore that relation to the freehold, he cannot be presumed to have made them with that intention. His position in regard to improvements was analogous to that of a mortgagor, who has no right to remove improvements he has put upon the land, permanent in their nature, for the reason that the law presumes that they were annexed with the design of being permanent. Dooley v. Crist, 25 Ill. 551" date_filed="1861-04-15" court="Ill." case_name="Dooley v. Crist">25 Ill. 551. Ho intention at variance with this presumption is allowed to affect the rights of a mortgagee, or of a vendor, where the vendee is in possession under an obligation to make the land his own. Smith v. Moore, 26 Ill. 392" date_filed="1861-04-15" court="Ill." case_name="Smith v. Moore">26 Ill. 392. The appellee, at the time the house was built, was bound to take notice of the relation subsisting between the appellant and Schuster; and the evidence tends to show that he had actual knowledge thereof: what Schuster could not do, he could not authorize or permit another, either along with himself, or separately, to do; and, therefore, it is not perceived how the appellee, by joining with Schuster in erecting the building, under an agreement to become part owner of it, and afterwards obtaining a conveyance of Schuster’s interest therein, acquired any right to remove it from the premises.
The dwelling house, prior to its removal, was a part of the realty, and the legal title to the same was in the appellant. So long as the contract for the purchase of the land remained unexecuted, Schuster had only an equitable right to the house as a part of the realty, and the appellee acquired no greater right to it. They had no right of possession independent of their right to occupy the land, and when the house was removed from the realty their right of possession ceased. The severance and removal of the house were tortious acts, by which it was separated from the property which Schuster had a right to occupy, but did not change the legal title vested in the appellant as the owner of the freehold. The appellant’s legal title drew to it the right of possession from the time Schuster’s right of possession ceased. The appellant might have maintained trespass, or trover for the value of the house; therefore the action of replevin was sustainable, so long as the house could be identified, and was not permanently annexed to other realty. Davis v. Easley, 13 Ill. 192" date_filed="1851-12-15" court="Ill." case_name="Davis v. Easley">13 Ill. 192.
The judgment of the court below is reversed and the cause remanded.
Judgment reversed.