Majority
p. 116Fryatt & Campbell vs. The Sullivan Company.
Headnote
Where one having hired the use of certain personal property, wrongfully converted it by annexing it to and making it a part of his real estate, and then sold the real estate to a third person who had no notice of the facts; held, that the party injured could not reclaim his property from the purchaser, but his only remedy was by action against the original wrong-doer.Error to the superior court of the city of New-York. The plaintiffs in error sued the defendants in trover for a steam engine and two boilers. The New-York and Shawangunk Mining Company formerly owned certain real estate in the county of Sullivan, upon which they had buildings and works for the smelting of lead ore. On the 20th of October, 1838, they purchased the engine and boilers in question of William Jones in the city of New-York, for #1,803,50, and Jones gave a bill of sale to the plaintiffs in which he stated that the plaintiffs had given him their note at 30 days for #603,50, and the company had given their note for #1200, payable May 1, 1839, which notes when paid would be in full for the property. On the same day the company executed a writing stating that they “have hired and taken from” the plaintiffs the engine and boilers for one month, to commence that day, for the sum of $20, payable at the expiration of the
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month. The company promised to make punctual payment, “and to quit and surrender up” the property “at the expiration of said term, in as good state and condition as reasonable use and wear thereof will permit.” The company immediately took the engine and boilers to their works in Sullivan comity, and affixed the same firmly to the freehold, so that they could not be removed without destroying the building in which they were placed; and in that condition the engine and boilers have remained ever since. The plaintiffs knew what use the company made of the engine and boilers.
On the 31st of August, 1839, the company mortgaged their lands with all the buildings, fixtures and machinery, to Henry, Daniel and Alexander J. Cotheal, for securing the payment of $20,000 with interest, in one year. The Cotheals had no notice of the claim of the plaintiffs upon the engine and boilers. The mortgage ivas foreclosed in chancery, and the propertypurchased by A. J. Cotheal. The master’s deed to him was dated December 4, 1841. On the 20th December, 1841, A. J. Cotheal contracted to sell the property to the defendants for $24,000 and upwards, and the vendees were to have immediate possession. The defendants took and still hold possession of the property. In January, 1842, the plaintiffs demanded the engine and boilers, and the defendants refused to deliver them. The court below nonsuited the plaintiffs, and they now bring error on a bill of exceptions.
M. T. Reynolds, for the plaintiffs in error.
A. Thompson, for the defendants in error.
The nonsuit was clearly right. A man cannot maintain an action against me by proving that the person from whom I purchased my house, wrongfully took or converted the brick, stone, timber, lime or other materials of which my house was constructed. Nor can he enter and tear down my house for the pmpose of regaining that portion of it which once belonged to him. His only remedy is against the
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wrong-doer. Now here, the New-York and Shawangunk Mining Company affixed the engine and boilers so firmly to the earth and building that they clearly became a part of the freehold. After haying thus converted the property into real estate, the company mortgaged the land with all the appurtenances to the Cotheals, who had no notice of the plaintiffs’ claim; and the defendants have since purchased from A. J. Cotheal, to whom the property was sold on the foreclosure of the mortgage. Whether the plaintiffs could have entered upon the New-York and Shawangunk Mining Company prior to the mortgage, and severed the engine and boilers from the freehold, or whether their remedy lay wholly in action, we need not consider. They clearly cannot enter upon the Cotheals, or those claiming under them, nor can any action he maintained against them.. If the defendants are liable in any form, the action should have been ejectment. But there can be no doubt that they acquired just as good a title to the engine and boilers as they did to the rest of the real estate. The remedy of the plaintiffs is against those who wrongfully converted this personal into real property and then sold it.
Judgment affirmed.