LEIGH ROBINSON, RECEIVER IN THE SUIT OF GEORGE W. FARANT ET AL., VALICIA FARANT ET AL., vs. EMILY C. WRIGHT

LEIGH ROBINSON, RECEIVER IN THE SUIT OF GEORGE W. FARANT ET AL., VALICIA FARANT ET AL., vs. EMILY C. WRIGHT. In Equity. No. 3456. A wooden building standing upon blocks and rollers so that it could be removed without disturbing the freehold, and which was built for the purpose of removal if necessary, may be regarded as a movable fixture, and the personal property of the tenant. STATEMENT OE THE CASE. This is a hill in equity filed on behalf of certain infants, by their next friend, for the partition or sale of lot 17, square 269, in the city of Washington, in which the infants have an interest in common with adults. On December 3,1873, an order was made that the auditor take testimony as to the condition of the property, and to report as to whether the premises were susceptible of partition, or whether it would be for the interest of the infant complainants that the property in question be sold for the purpose of disbursing the proceeds among the parties interested. A sale was recommended by the auditor, and a decree was made in accordance therewith, and also appointing Leigh Robinson trustee to make the sale, and to rent the property, and collect the rents. On the premises there had been placed a dwelling-house, erected by one Lewis W. Conner, who had sold the said house about a year prior to the commencement of this suit, to Emily C. Wright. The trustee demanded rent from her which she declined to pay. The trustee then obtained an order of court appointing him receiver of the rents and profits of the property, and ordering said Emily C. Wright to attorn and pay him such rents as had accrued as well as those that might thereafter become due, unless she should show cause why she should not so attorn. This order was made absolute. After various other proceedings in the cause, it coming to the knowledge of the receiver that said Emily O. Wriglit was preparing to remove the house, he obtained an order on the 16th of, December, 1871, restraining such removal, and which order was returnable on the 19th of the same month. On the day before that set for the hearing, the said Lewis W. Conner and Emily C. Wright engaged in. the removal of said house, and it was thereupon ordered by the court that they be attached for contempt of court. On the day set for the hearing of the injunction, the answer of Emily O. Wright was read, alleging “that the house on lot 17, square 296, never was placed upon piles as alleged, and pinned to the ground, but is and always has been free from said lots, and purchased with her own money;” that “no copy of said bill or petition has been served upon her, or her attorney of record, as the rules of this honorable court require;” that “ said writ has been granted ex parte without notice of such application to defendant or her attorney;” that “ defendant had acted in good faith and upon what she believed, upon the information she was able to obtain, was the right of the matter.” To this were added— 1st. The affidavit of L. W. Conner, that he built said house, ■and built it for the purpose of removal, if necessary; and “that, something more than a year ago, and prior to the bringing of this suit, he sold the house, improvements, and right of possession to Mrs. Emily O. Wright,” and further alleging misinformation as the cause of his disobedience to the order of the court. 2d. The affidavit of Geo. F. Rider that, some time during June or July last past, Leigh Robinson, trustee, stated to him, during the transaction of other business, that he purchased the realty, to wit, lot 17, square 296, without knowing that there was any house thereon, and that he had thus acquired it without paying money therefor. 3d. The affidavit of Joseph Murdock, “ that the said house was, when I was called, standing on blocks or rollers;” and further, “ that to remove this house in a proper manner, would require about one week of time.” Upon this showing Mr. Justice Wylie dissolved the injunction and ordered that Emily C. Wright be allowed to remove said house,' and the case is now here upon an appeal, from this order. Leigh Robinson for the receiver. Belva A. Lockwood for Emily C. Wright. [MAJORITY — By the court :] By the court : The proofs on the hearing for the attachment and injunction against Emily C. Wright very clearly show that tho house in question had been purchased by her from Mr. Conner, and paid for with her own money and in perfect good faith. She was not a formal party to the suit, and it may well be questioned whether the proceedings against her were not all irregular. She explained her alleged contempt to the satisfaction of the court below; and that matter is not properly before us for review. She claimed ownership of the buildings, and a title to property cannot be divested without due process of law. But aside from this, it appears that, the lot of ground was unimproved when the house was placed upon it; that it was a frame house built for the purpose of removal, if necessary; and that it was not fastened to the ground by pins or stakes, but stood upon blocks or rollers, so that it could be removed without disturbing the-freehold. Now, although it is settled law that real estate embraces all additions of a permanent character as forming part of' the land ,• still an improvement, like the building under consideration, we are inclined to regard as a movable fixture, and may be, consistently with the rule of law referred to, held to be the personal property of the tenant. With this view we think the order appealed from ought to be affirmed.