Leonard v. Clough — 45 N.Y. St. Rep. 259

Majority

p. 259

Bowers H. Leonard, App’lt, v. Roble Clough and De Witt C. Clough, Resp’ts.^[1]

(Court of Appeals,

Filed May 24, 1892.)

Headnote

Fixtures—Barn standing on realty cannot be reserved by paroi.

Defendants conveyed to their daughter certain premises on which was a. portion of a barn, wjiich was built upon stones sunk in the ground. At the time of the conveyance the daughter told defendants that the barn was theirs, and they continued to occupy it, and subsequent grantees, including plaintiff, were notified that the barn belonged to defendants. In an action to recover damages for the removal of the barn, Held, that at the time of the conveyance by defendants the barn was a part of the realty, and there could be no paroi reservation of it, and that it passed with the land to the grantees under the successive conveyances, notwithstanding such notification.

Appeal from judgment of the supreme court, general term, fifth department, overruling exceptions and directing judgment' for defendants on the verdict.

Amasa J. Parker, for app’lt; John O'Brien, for resp’ts.

The matérial 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 bam, 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 northerly 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 stri p 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 Bobie Clough, and two-thirds-thereof upon the land of Mary Gilbert. At the time of the execution of the deed by Bobie 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 Bobie Clough and her husband have ever since been in the occupancy of the barn.

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. Nelliswas 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.

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■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 bam 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. Olough 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 Mra Clough to Mrs. Gilbert was a part of the realty, and there could be no paroi reservation of it The grantor could no more reserve the barn by paroi that 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 bam 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 operative 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 could net be upheld of a portion o.f the real estate 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

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the bam 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 bam as stood upon this lot was finally vested in the plaintiff. All the deeds contained covenants of warranty. 'Those covenants run 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 him 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. Hilbert's would have been if she had disputed Mrs. Clough’s right to the barn and before she 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 bam 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. Bos worth, 19 Pick., 314 , is a very precise authority.

We are, therefore, of opinion that the judgment should be reversed and a new trial granted, costs to abide event.

All concur.