16 W. Va. 428 | W. Va. | 1880
delivered the following opinion of the Court:
In the case at bar the description of the property in the contract of sale is the "Ritchie Virginia Mills," with a tract of about seventeen acres of land on which said mills are situated. That contract of course passed the mills and fixtures which were a part thereof consisting of engine, boiler, burrs, mill-irons, &c. The engine, boiler, burrs and mill-irons in controversy in this suit were on the property when the plaintiff, Patton, acquired an equitable title thereto. When Patton sold to Meserve, he reserved the engine and boiler, and sold them to another party. As far as Patton's rights wcra concerned, there was a complete severance of the property, and a conversion into chattels. Lewis, Rceiver &c. v. Rossler, Sheriff, &c., supra. Patton then cancelled his contract with Meserve, and let (Jochrane have the mill-
But while Cochrane was in possession of the mill-property under his purchase from Patton, he purchased the same engine and boiler with the manifest intention of again making them fixtures in the mill, and had for that purpose hauled them into the mill-yard, and before he had put them into the mill, they were on the 30th day of December, 1870, levied on by sheriff Heaton, under an execution in favor of Meserve, for the use of B. F. Moore v. Martin Cochrane. Were they .liable to be so levied upon at that time ?
In The Congregational Society of Dubuque v. Fleming, 11 Ia. 533, a bell had been used in the belfry of an old church-edifice of a religious society; a new building was erected and the old one sold, the bell being reserved. A tower was erected on the new building for the bell and a temporary frame-work was also erected upon the lot, upon which the bell was placed and used for church purposes with the intention on the part of the authorities of the society to place it permanently in the tower. It remained in the tempory frame for nearly a year, and was then removed to the place designed for it.. It was held, that it never ceased to be a fixture, and that it was not subject to the levy of an execution as personal property.
In Palmer v. Forbes et al., 23 Ill. 301, it was held, that the rolling stock, rails, ties, chains, spikes, and all other material brought upon the ground of the company and designed to be attached to the realty should be considered as a part of the realty. This decision was approved in McLaughlin v. Johnson, 46 Ill. 163. In the former case the court said : “ It is a familiar principle,
If Moore, the execution-creditor, had a lien on the engine and boiler by virtue of the levy, it was of course in his power to release that lien; and if by his consent the property was made a part of the freehold, that was certainly a most effectual mode of releasing his lien, because the power to enforce it under execution was forever gone. That Moore did intend, when he gave his consent after the levy that the engine and boiler should be attached to the mill, to release his lien on the property, if any he had under the levy, is made conclusive by the fact, that he lay quiet for nearly five year’s, and when the mill was washed away by the flood, he again liad another execution issued upon the judgment, which was by B. F. Mitchell, sheriff of Ritchie county, on the 9th day of October, 1875, levied upon the same engine and boiler. Did the severance by the flood on the 2d day of August, 1875, convert the engine, boiler, burrs and mill-irons into chattels, so that they were subject to the levy of the execution on the 9th day of October, 1875 ? According to the decision in Buckout v. Swift, 27 Cal. 483, which laid down the broad proposition, that the severance and removal of a house from the freehold changes the character of the house from real to personal property, whether the severance is by the act of God or of man, it did have that effect. But we cannot approve
For the foregoing reasons the decree of the circuit court of Ritchie county is affirmed with costs and $30.00 damages.
Decree Apeirmed.