38 N.J.L. 457 | N.J. | 1875
This is an action on the case for an injury to the reversion. The plaintiffs were the owners of the land, and one Isaac H. Tice was their tenant. The defendants are creditors of Tice, and upon his leaving the state they took out an attachment, and, entering on these premises, which had been leased to their debtor, took down and carried away a steam engine, put up by him, and it is this act that forms the ground of this action. In the damages ■recovered by the plaintiffs is included the value of this engine.
The contention necessary to the support of this suit is, that the engine in question had ceased to be a removable fixture, by reason of its having been left upon the premises by the tenant after his term had expired. That the right existed to remove this article of property during the tenancy was not ■disputed; as between landlord and tenant, it was a trade fixture, and was clearly removable if taken away in time. But ■when the defendants levied their attachment, the term had run out, and the tenant had quitted the possession, and the argument, founded on these facts, was, that the right of the tenant to remove the fixture was gone, and that, after such lapse, neither he nor his creditors could lawfully enter and remove the engine.
This was the substantial question, although it was much urged on the argument that there was another ground on which the action could properly be rested. This was, that the judgment in attachment, under which the defendants justified, was radically defective, and void. But this defect, even if it exists, will not alone sustain the judgment in its present form. On the assumption that the defendants are naked trespassers, the plaintiffs cannot recover of them damages for the taking away of this engine, unless, at the time of such taking, it was a part of the land. This results from the capacity in which the plaintiffs sue; they were not in possession at the time of the injury complained of, and they have necessarily sued as reversioners. Standing in such capacity on the record, the damages for which the wrongdoer is an
Was this the case? I have said that this fixture, during the running of the tenancy, was removable. But the term in the land had expired, and the tenant had left the property, when this entry and taking occurred. It is undoubtedly the settled rule of law, that where a tenant has the right to remove fixtures, he must exercise his right during the continuance of his term, or before he surrenders the possession of the premises; he cannot re-enter for such purpose. A multitude of cases have been decided in accordance with this doctrine, many of which can be found by a reference to the notes to the case of Elwes v. Mawe, 2 Smith’s Lead. Cas. 228. And it was in submission to this rule that the judge, at the trial in the present case, instructed the jury adversely to the defence. Such instruction would have been incontestably correct if there had been no other conditions of the case than those already specified. But such was not the fact. There =was evidence tending to show that before the defendants had altogether yielded up the possession of the premises, in a conversation with one of the plaintiffs, it was understood that the plaintiffs would endeavor to sell for the defendants this steam ■engine, to a person who was then in treaty for the purchase ■of the land. Looking at the whole of the testimony on this .subject, it is, perhaps, a fair conclusion that the tenant failed to remove the engine in consequence of this arrangement. Upon the assumption that such an undertaking on the part ■of the landlords existed, I can have no doubt that its effect is to ■debar them from claiming that the chattel in question became ■theirs as an unremovable fixture, by reason of the surrendering up of the possession of the premises. For a landlord to claim a chattel affixed to the land, on the ground that the tenant had failed to remove it while in possession, when such
It would seem to be clear that, in the view of these great common law judges, the landlord’s right to the removable fixtures originated in an implied gift on the part of the tenant, such implication arising from the fact that the tenant, at the end of his term, abandoned the property without removing them. Such presumption is undoubtedly a presumption of law, and how far it is liable to' be rebutted has not been entirely defined. In the valuable note of Mr. Smith, in his volume of Leading Cases already referred to, it is said, in treating of the possibility of overcoming this legal presumption, “it has never been determined what might be the effect of a formal declaration of the tenant, on quitting, that he did not
It is upon this ground that I think this judgment should bo reversed. The agreement on the part of the landlords to endeavor to effect a sale of the fixture for the benefit of the tenant, carried with it an implied permission that it might be removed if such endeavor proved to be unsuccessful. Such arrangement, of necessity, involved the fact that the tenant did not intend to abandon the fixture to the landlord, and it is quite unreasonable to suppose that such an abandonment was meant in case a sale was not effected. The engine was left on the property for a specific purpose, and with the assent of the land-owner; such purpose having failed, the tenant did not lose his property, but was entitled to remove it within a reasonable time. Under these circumstances, it is impossible to consider the chattel in^question as a part of the realty, or that its removal worked an injury to the reversioner. The
The judgment must be reversed.
For affirmance — None.
For reversal — The Chancellor, Chief Justice, Depue, Reed, Scudder, Van Syokel, Woodhull, Clement, Dodd, Green, Lilly, Wales — 12.