18 Ind. 231 | Ind. | 1862
The record in this cause makes the following ease:
Jacob B. Dorsh was the owner of a tract of land. On that tract of land William Bisinger erected, and operated a steam saw mill. Upon what terms he was permitted to put up the saw mill, does not appear; nor is it shown for how long a
We state, as one of the facts, that the property was advertised in three of the most public places in the township because the jury so found.
This suit was brought upon the joint relation of Dorsh and Risinger, against the sheriff and his sureties on the sheriff’s bond, and two breaches were assigned.
1. That the sheriff had sold real estate without advertising in a newspaper which was published in the county.
2. That he had sold personal property without posting-notices in three of the most public places in the township.
This second breach did not exist, as we have seen above, and we shall only, therefore, in what we may say, address ourselves to the first. But before doing so, we will notice a point of practice.
The defendant demurred to the complaint, the demurrer was sustained, the plaintiff excepted, and then amended his
Proceeding now to the question whether the engine and mill fixtures were real or personal property, it may be asserted that if Risinger would have been entitled to remove these fixtures from the premises of Borsh, during the term of his right of occupancy of the premises, they would, as between Borsh and Risinger, be personal property; and if personal property as between them, they might be liable to be taken on execution against Risinger, the owner of them, though the execution was a joint one against Risinger and others. Taffe v. Warnick, 3 Blackf. 111. See Frederick v. Devol, 15 Ind. 357, and note, where authorities on fixtures are collected.That Resinger would have had the right to remove the engine, &e., we have no doubt. Van Ness v. Pacard, 2 Pet. (U. S.) Rep. 137; Amos and Eerard on Eixtures, 2 Am. ed. Top. p. 46, note 1, where the cases are collected. See, also, McCracken v. Hall, 7 Ind. 30.
The judgment below was for the defendants, and it must be affirmed, with costs.