| N.C. | Jun 5, 1830
FROM MONTGOMERY. On the trial before NORWOOD, J., a verdict was returned for the plaintiff, subject to the opinion of the Court upon the following facts:
The plaintiff claimed title to the engine under a levy made by him *241 as sheriff of Montgomery upon a fieri facias against one Bosworth. The defendant claimed under a sale made by a constable (377) upon an execution against the same person.
At the time of the plaintiff's levy and the sale to the defendant the engine was standing upon land which Bosworth held for a term of years. The engine was then prepared for operation; the boilers were placed in a pit and nearly covered with masonry, and the whole mill was under cover of a house, which it would be necessary to pull down in order to remove the machinery.
Judgment was entered up for the plaintiff, and the defendant appealed. The principal question made at the bar cannot be decided on the case in this record; for it does not appear whether Bosworth or his landlord erected the engine, nor the purpose for which it was erected. The old law was more strict in regard to things becoming part of the freehold by being affixed to it than it is in modern times. Since trade and the mechanic arts have become such important pursuits, there has been a relaxation in their favor. It is unnecessary to consider the question between the executor and heir, or that between the owner of a particular estate and remainderman, because that between the landlord and tenant stands upon its own grounds. The general rule is that any erection, even by the tenant, for the better enjoyment of the land becomes part of the land; but if it be purely for the exercise of a trade, or for the mixed purpose of trade and agriculture, it belongs to the tenant, and may be severed during the term, or after its expiration, though in the latter case the tenant (378) will be guilty of a trespass in entering the land for that purpose, and in that respect only. We should, therefore, be obliged to grant a new trial at all events, because it does not appear here when, by whom, nor for what this engine was set up, nor whether Bosworth's lease had expired or not.
There can be no doubt, however, that as between the tenant and his creditors an engine of this sort, actually fixed to and in the soil, and which cannot be removed without tearing down the mason's work and house which covers it, is, until severance, a part of the realty. There is no necessity for drawing nice distinctions between the two kinds of property here. If the creditor could not reach it as realty, the Court would go far in his favor in holding it to be of that species, which would render it liable to sale. But it is equally liable to execution *242 as the one or the other. But until it is parted from the soil such fixture loses its distinctive character of personalty. For this reason the sale by the constable is absolutely void; for he can in no case sell lands. For the same reason the seizure by the sheriff is ineffectual to the end of vesting the property in him as a personal chattel. Although the sheriff can sell the land, yet he must sell it as land. He cannot sell a house that stands on it as a matter distinct from the soil, and to be removed by the purchaser. He must sell the property in the state and as the kind it is at the time of the sale. The single act of levying an execution does not change the nature of the property. And although the tenant might have a right to sever the fixture from the freehold, until that right be exercised by him or the officer, the thing is merged in the soil. Even the tenant himself before severance could not bring detinue. Although the law may confer upon him the power to reconvert the engine into a personal chattel, until that power be exercised it is not reconverted. Whether the sheriff may not (379) do it in his stead, it is unnecessary to say. He has not done it; and therefore this action of detinue will not lie.
PER CURIAM. Reversed.
Cited: R. R. v. Deal,