62 So. 343 | Ala. Ct. App. | 1913
— On the trial in the circuit court, where the case was brought on an appeal from a justice’s court, a substitute complaint containing two counts was filed in lieu of a lost complaint. Count 1 is in detinue, and claims the right to recover of the defendant a certain described frame house, which it is alleged was erected on a certain lot by the plaintiff under a contract entered into with one A. D. Harrold, who was the owner and in possession of the lot at the time the house was built; and that under the terms of the agreement the house was not to become a fixture to the realty, but was to remain the personal property of the plaintiff, and that he was to have the right to remove it from the lot. Count 2 is in trover, alleging a conversion of the house by the defendant. The defendant joined issue on both counts of the complaint, and the case was tried on the issues so joined.
The evidence, without conflict, shows that -the plaintiff (appellee here) erected the house on the lot at a time when it was owned by and in the possession of one A.
The house having been erected by the plaintiff under an agreement with the then owner of the lot, Harrold, that it should remain the property of the plaintiff and be removed by him, the house did not become a fixture of the realty, passing with an alienation of the land, but remained a chattel, the personal property of the plaintiff, recoverable by him in an action of detinue as other personal chattels. The house not having passed by a conveyance of the realty from Harrold to Braver-man, or by the similar conveyance from Braverman to the defendant, and there being, under the evidence, no intervening rights of innocent third parties affected, the plaintiff’s case, on the issues before the court, was made out by the undisputed evidence, and the general charge was properly given at the plaintiff’s request. —Broadus et al. v. Smith, 121 Ala. 335, 26 South. 34, 77 Am. St. Rep. 61; Harris v. Powers, 57 Ala. 139; Powers v. Harris, 68 Ala. 410; Foster v. Mate, 4 Ala. 402, 37 Am. Dec. 749; Chalifoux & Co. v. Potter, 113 Ala. 215, 21 South. 322.
One of the appellant’s assignments of error insisted upon is based on the court’s refusal to allow the defendant to introduce in evidence the mortgage given by Harrold to Braverman to secure part of the purchase money. At the time this mortgage was given, the house in question had not been erected upon the land, but the agreement for its erection, and its actual
. The rulings of the trial court are free from error, and the judgment appealed from will be affirmed.
Affirmed.