Thweat v. Stamps

67 Ala. 96 | Ala. | 1880

SOMERYILLE, J.

— It is well settled that growing crops pass, to a vendee, with the title of land upon which such crops are standing at the time of sale. In this ease, the wheat was in process of growth,, and ungathered, at the time of the .sheriff’s sale,, and was part and parcel of the realty. The interest, which the defendant in execution had in it, passed with the title of the land to the purchaser, and there was no error in the Circuit Court so charging the jury.” Freeman on Executions, § 474; 4 Kent Com. 468; 3 Wash. Real Prop. 625, note (1); Foote v. Colvin, 3 Johns. 216; Crews v. Pendleton (1 Leigh. 297); 19 Amer. Dec. 750 and 752, (note).

The rails and brick were personal property so long as they remained disconnected from the freehold. They could not become fixtures until they were actually or constructively annexed to the realty. — Ewell on Fixt.. 345; McLaughlin v. Johnston, 56 Ill. 163. And, since trover lies only for the conversion of personal chattels, it cannot be maintained for the recovery of such fixtures when annexed to and constituting-part of the freehold, at least as between vendor and vendee. When so annexed, a demand should be made for the right or privilege of removal, and in case of refusal, an action would lie for preventing the plaintiff from exercising the right to sever. The evidence here shows no- such demand. — Ewell, on Fixt. 434-5, note (4); Villas v. Mason, 25 Wis. 310; Miller v. Baker, 1 Metc. 27.

In order to sustain the action of trover, moreover, there must have been, on the part of the defendant, some unlawful assumption of dominion over the property in question, in defiance- or exclusion of the plaintiff’s right, or else a withholding possession from the plaintiff, under a claim of title, inconsistent with his own. The defendant would not be guilty of a conversion unless he directed, induced or ratified the act of Dill, in his exercise of an unauthorized dominion over the property, if such it was under the evidence. 2 Greenl. Ev. § 642; Ewell on Fixt. 434.

The- rulings of the Circuit Court were in harmony with> these principles,,and the judgment is affirmed.