Sturgis v. Warren

Machinery iu a woolen factovy is personal property. If it is ed, either with or without the real estate, and left in the possession of the mortgagor, it is subject to attachment as his property. The entering upon real estate and severing a part therefrom and carrying it away, by one continuous act, can be recovered for, by the tenant, only by an action of trespass, quare clausum fregit.

This was an action of trespass for taking wool, cloth,machinery, factory bell, &c. Plea, not guilty, with a notice that the defendant, as deputy sheriff,took the articles on process, as the property of the Green Mountain Woolen Manufacturing Company. On the trial in the county court it appeared that on the 6th day of January, 1837, the Green Mountain Woolen Manufacturing Co. mortgaged to Whitwell & Bond their factory and the machinery therein. On the 22d day of April, the mortgagors then still remaining in possession, the defendant, as deputy sheriff, attached the machinery as the property of said manufacturing Co. and left copies of the attachments in the town clerk’s office, according to the statute, instead of taking possession. On the 1st day of May, 1837, Whit-well & Bond assigned their mortgage to the plaintiff, but this assignment was not witnessed, acknowledged and recorded until the 23d day of January, 1838. In July, 1837, the plaintiff, by his attorneys, took possession of the factory. Afterwards, judgments were obtained on the attachments,and, in January,the defendant sold the machinery in question on the executions. This machinery was affixed to the factory building in the usual manner, some with nails, some with spikes and screws and some with cleats. The bell was hung upon the factory in the usual manner, and was first taken by the defendant on the execution against - the Manufacturing Co. on the 3d day of January, 1838. Upon this evidence, the county court directed a verdict for the defendant, which the jury accordingly found, and the plaintiff excepted. I. If the articles in question were personal property, it is admitted that, in regard to all excepting the bell, the sale to plaintiff was fraudulent in law, for the want or delivery of the p ossession before the defendant’s attachment. But the bell was not attached by the defendant till after the plaintiff’s possession, and for that the plaintiff is entitled to recover, at all events. II. But the bell and all the machinery were real, not personal estate, being fixtures, attached to the freehold, and the plaintiff, at the time of the attachment by the defendant, had, at least, an indisputable title in equity to the property, and was in possession of the whole under that title. See Hathr way v. Phelps, 2 Aik. R. 88. Elthorp v. Deming, D. Chip. R. 141. Pearsal v. Thorp, id. 92. Lawton v. Lawton, 1 H. Bl. R. 259. Farr ant v Thompson, 16 Com. L. R. 61-Winnv. Ingilby, 7 do. 214. Colegrave v. Dias Santos, 9 do. 30. Lyde v. Russell, 20 do. 407. Lee v. Risdon, 2 do. 69. Longstajfv. Meagoe, 29 do. 60. Miller v. Plumb, 6 Cowen’s R. 665. 2 Kent’s Com. 279-80. Regina v. Wheeler, 5 Mod. R. 187, U. S. v. Appletont 1 Sumn. R. 492. The case of Tobias v. Francis, 3 Ft. R. 425, which will be relied upon in the defence, was decided by a divided court, and is, moreover, clearly distinguishable from the case under consideration. It cannot be endured that an officer should sever fixtures from the freehold, convert real into personal estate and sell it on execution. If he levies on real estate, he must take it as he finds it, and set it ofl by appraisal. I. The machinery in question was personal property and liable to attachment and execution, unless the plaintiff had a prior lien upon it, which the defendant contends he had not. Tobias v. Francis, 3 Ft. R. 425. 1. Whitwell & Bond had not taken any possession under the mortgage at the time' it was attached by the defendant. 2. At the time of the attachment, the mortgage had not been assigned to the plaintiff, and he had no possession of or property in the mortgaged premises, II. If the machinery was real estate, still the plaintiff cannot sustain this action ; because, 1. It appears from the assignment from Whitwell & Bond to him that it does not convey the mortgaged premises, but only a mere chose in action or equitable right. 2. If the assignment does convey the mortgaged premises, still, the taking and selling of the machinery was only a trespass on the freehold, for which this action does not lie. III. The defendant insists, 1. That the bell, at the time he took and sold it, was the personal property of the execution debtors. 2. If it was personal property it was not included in the mortgage, and if not included in the mortgage, the plaintiff can have no pretence of any claim to it, but it was liable to be taken and sold, as the property of the said debtors. IV. If the factory bell is to be regarded as real estate, still, the plaintiff cannot sustain this action ; because, 1. The assignment does not convey to him the mortgaged premises, but only a mere chose in action or equitable right. 2. The assignment was not duly executed until after the bell was taken and sold by the defendant. 3. If the assignment was duly executed, and did convey the mortgaged premises, still, the taking and selling of the bell was only a trespass upon the freehold, for which this action does not lie.