Bowers H. Leonard, Appellant, v. Robie Clough et al., Respondents

Bowers H. Leonard, Appellant, v. Robie Clough et al., Respondents. Where land and buildings thereon belong to the same person, the buildings are part of the realty and pass upon a conveyance thereof, and neither the grantor, nor those claiming under him, máy show that it was agreed by paroi that a building should be reserved ■[¡/Ba can retain title to the building only by some reservation in the deed, or by an agreement in writing, answering the requirements of the Statute of Frauds. 0. conveyed a lot, by ordinary warranty deed, upon which was a barn, to defendant R. who owned an adjoining lot. R. conveyed the lot Ao Q-., excepting a strip upon which was about one-third of the barn; ¿through various mesne conveyances plaintiff acquired title to said lot excepting - the strip so conveyed; all of the conveyances were ordinary warranty deeds. In an action against defendant for trespass in removing the barn from said lot, it appeared that R. has remained in possession of the barn since her conveyance and defendants were permitted to show that it was understood and agreed by paroi at the time of her conveyance to G-. that the barn was reserved to her and that each of the subsequent grantees, including plaintiff, was advised of such reservation at the time of receiving the deed. Held, that the evidence was improperly received; that the bam, not having been severed from the realty, or made personal property by any acts of the parties', could not be reserved by paroi, nor could the reservation be operative as a paroi gift, without violating the Statute of Frauds; that plaintiff acquired title under his deed to so much of the bam as stood upon his lot; and so, that the action was maintainable. (Argued April 19, 1892; decided May 24, 1892.) Appeal from judgment of the General Term of the Supreme Court in the 'fifth judicial department, entered upon an order made June 9, 1891, which overruled plaintiffs exceptions and directed judgment for defendants on the verdict. This action was of trespass to recover damages to plaintiffs premises arising from the removal of a barn a portion of which stood thereon. ^ The facts, so far as material, are stated in the opinion. Amasa J. Parker for appellant. The barn was built by the person, who at the time of building it, owned the lot on which the whole of it stood; on its erection under such circumstances, it became and remained a part of the realty and passed with its conveyance. (Voorhees v. McGinnis 48 N. Y. 283; Buckley v. Buckley, 11 Barb. 63; McRea v. C. N. Bank, 66 N. Y. 495; Potter v. Cromwell, 40 id. 296; Reid v. Kirk, 12 Pick. 54; Walker v. Sherman, 20 Wend. 638; Gardner v. Finley, 19 Barb. 320; Snedecker v. Warring, 12 N. Y. 170.) The court erred in allowing the paroi evidence to show a gift of the barn. (McRea v. C. N. Bank, 66 N. Y. 489, 495; Boone on Real Prop. 306, 307; 3 Washb. on Real Prop. 391; 3 Kent’s Comm. 401 ; Warren v. Leland, 2 Barb. 618; 19 N. Y. 240-242; Green v. Armstrong, 1 Den. 554, 555; Lacustrine Co. v. Fee Co., 82 N. Y. 484; Vorebeck v. Roe, 50 Barb. 302-305; Taylor v. Millard, 42 Hun, 364; 28 N. Y. S. R. 694; Wiseman v. Lucksinger, 84 id. 31; Pierce v. Keator, 70 id. 419 ; Huntington v. Asher, 96 id. 604; Mott v. Palmer, 1 id. 572; Goodrich v. Jones, 2 Hill, 142; Thayer v. Wright, 4 Den. 180; Slocum v. Seymour, 36 N. Y. 139 ; 1 Washb. on Real Prop. 632; Conkrite v. Conkrite, 94 N. Y. 328; People v. Field, 1 Lans. 244, 245 ; 3 Smith’s L. C. 2107; Hussey v. Hefferman, 143 Mass. 232; Knight v. Taylor, 125 id. 25 ; Russ v. Alpaugh, 118 id. 369; Gregory v. People, 80 Va. 355 ; 1 Greenl. on Ev. § 275 ; Stephens on Ev. 260; Austin v. Sawyer, 9 Cow. 40; Wintermute v. Sawyer, Id. 40.) John O’Brien for respondents. Mrs. Gilbert, being the owner of the barn, could certainly dispose of it by paroi. All buildings sold to be moved away, are sold by paroi, and delivery to the purchaser is all that is necessary to pass title. It is well settled that parties may, by agreement at the time of annexation, preserve the character of personalty to chattels annexed to the land. (Mott v. Palmer, 1 N. Y. 564; Tifft v. Horton, 53 id. 377; Voorhis v. McGinnis, 48 id. 278; Sheldon v. Edward, 35 id. 279; Dubois v. Kelly, 10 Barb. 496.) The evidence- of the gift from Mary Gilbert to the defendants, and of the subsequent recognition of that gift, by plaintiff’s grantors, and of facts tending to show that plaintiff himself had notice of defendant’s title to thé barn, was properly admitted. (1 Greenl. on Ev. § 279; McMaster v. Ins. Co., 55 N. Y. 234.) The defendant’s title to the barn was sufficiently pleaded. Under the common-law pleading a mere allegation of possession of personal property was as a rule sufficient. (Heard’s Civil Pleading, 229 ; Bliss on Pleading, § 230; Van Santvoord’s Pleadings, 54; Code Civ. Pro. § 546; Marie v. Garrison, 83 N. Y. 14.) [MAJORITY — Earl, Ch. J.] Earl, Ch. J. The material facts in this case are as follows: Prior to March 29, 1884, Adaline Clough owned a lot of land in the city of Auburn, upon which there was a small barn, and on that day she conveyed the lot by an ordinary warranty deed to the defendant Bobie Clough, who owned the adjoining lot on the notherly side of the lot thus conveyed. On the 1st day of April, 1884, Bobie Clough, by an ordinary warranty deed, conveyed the same lot to her daughter Mary Gilbert, with the exception of a strip six feet by twelve rods reserved from the northerly side of the lot. ■ About one-third of the barn was upon the strip thus reserved, and thus the dividing line between the two lots after that conveyance ran through the barn, leaving about one-third thereof upon the land of Eobie Clough and two-thirds thereof upon the land of Mary Gilbert. At the time of the execution of the deed by Eobie Clough to Mrs. Gilbert and immediately thereafter she said to Mrs. Clough and her husband: “ Now pa and ma the barn is yours; there can nobody interfere with you,” and Eobie Clough and her husband have ever since been in the occupancy of the bam. On the 28th day of October, 1886, Mrs. Gilbert by an ordinary -warranty deed, conveyed the lot to Julia M. Sherwood, and at the time of that conveyance Mrs. Sherwood was informed that the barn belonged to Mrs. Clough and there was a paroi reservation of the same. On the 1st day of November, 1886, Mrs. Sherwood, by an ordinary warranty deed, conveyed the lot to Mrs. Eunice Nellis, and at the time of that conveyance Mrs. Nellis was informed by paroi that Mrs. Clough owned the barn and that it did not pass. On the 8th day of ¡November, 1888, Mrs. ¡Nellis, by an ordinary warranty deed, conveyed the lot to the plaintiff, and at the time of that conveyance he was informed by paroi that the barn belonged to Mrs. Clough and did not pass with the conveyance. After he had purchased the lot, Mrs. Clough informed him that she claimed the barn and intended to move it from the lot and he told her not to move it. After that the defendants moved the barn from the lot, and then the plaintiff brought this action to recover for the value of so much of the barn as stood upon his lot and claimed to recover treble damages. The barn was a wooden structure, worth less than $200, and rested upon four large stones at the corners and smaller stones at other places. Upon the trial the plaintiff objected to the paroi evidence given by the defendants to show the paroi reservation of the barn at the times of the several conveyances of the lot. But the court overruled the objections and received the evidence, The court below held that the evidence was competent; that the barn after the conveyance by Mrs. Clough to her daughter became and remained personal property, and that she had a lawful right to remove the same, and judgment was entered Upon the verdict in favor of the defendants. We think a few plain principles of law require a reversal of this judgment. This barn at the time of the conveyance by Mrs. Clough to Mrs. Gilbert was a part of the realty, and there could be no paroi reservation of it. The grantor could ño more reserve the barn by paroi than she could reserve trees growing upon the land, or a ledge of rocks or a mine or a portion of the soil. As between the grantor and grantee it is very clear that the grantor would not have been permitted to show that the barn was reserved by paroi, as that evidence would have contradicted the deed which was absolute in form. If the grantor had removed the barn the grantee could have sued her for trespass and she could not have defended by showing a paroi reservation of the barn. If it had been claimed in such a suit that it was part of an oral agreement or reservation that the barn should not pass, that fact could not have been shown, as it would have contradicted the deed. The deed contained covenants of warranty •which covered the entire title to the real estate, and the grantor could not in such a suit have shown by paroi that any part of the real estate was not covered by the covenants. So, too, if it be claimed that what was said by Mrs. Gilbert to Mrs. Clough immediately after the deed was delivered constituted a paroi gift of the barn to her father and mother, the gift could not be oj>erative because the barn at that time was a part of the realty. It had never been severed from the realty and had never been by any acts of the parties or the owners made personal property, and the paroi gift of a portion of the real estate could not be upheld without violating the Statute of Frauds. The one-third of the barn which rested upon the lot owned by Mrs. Clough was and remained realty, and it is impossible to perceive how by mere words the other two-thirds could be converted into personalty. Can trees and other portions of real estate be converted into personalty by a mere paroi gift and without severance ? It is clear that after the conveyance from Mrs. Clough to Mrs. Gilbert the barn remained a part of the realty, and was covered by the deed and the covenants of warranty therein contained ; and so the barn passed to each successive purchaser, and no grantor could dispute that the grantee took title to the barn ; and thus the title to so much of the barn as stood upon this lot was finally vested in the plaintiff. All the deeds contained covenants of warranty. Those covenants fun with the land, and each successive grantee could have the benefit of all the prior covenants. The plaintiff is in privity of estate with Mrs. Clough, and his rights are the same as they would have been if he had been her immediate grantee. He holds under her deed, and in an action by liim for a breach of her covenants she could not dispute that the barn was a part of the realty. And in this action against her for removing the barn she cannot dispute that it passed under her deed. His rights are the same as Mrs. Gilbert’s would have been if she had disputed Mrs. Clough’s right to the barn, and, before she had conveyed, had sued her for removing it. A careful scrutiny of the cases cited on behalf of the defendants shows that there is absolutely no authority for their contention in a case like this. If at the time of the conveyance of Mrs. Clough the barn had been personal property in the ownership of some other person, and the grantees had been notified of that fact, the title to it would not have passed by the successive conveyances. If this barn had been placed upon the lot by some third person with the consent of the owner and with the understanding that such third person could at any time remove it, it would have remained personal property and would not have passed to a purchaser under any form of conveyance providing such purchaser had notice of the fact. But where the land and the buildings thereon belong to the same person, then the buildings are a part of the real estate and pass with it upon any conveyance thereof. In such a case the grantor can retain title to the buildings only by some reservation in the deed, or by some agreement in writing which will answer the requirements of the Statute of Frauds. Any other rule would be-exceedingly dangerous, and would enable a grantor, in derogation of his grant, upon oral evidence, to reserve buildings and trees and other portions of his real estate, and thus, perhaps, defeat the main purpose of the grant. For these views the case of Noble v. Bosworth (19 Pickering, 314) is a very precise authority. We are, therefore, of opinion that the judgment should here versed and a new trial granted, costs to abide event. All concur. Judgment reversed.