Folsom v. Moore

19 Me. 252

• Court: Supreme Judicial Court of Maine
• Decided: May 15, 1841
• Status: Published

Opinion

The opinion of the Court was delivered by

Weston C. J.

The better opinion is, upon the authorities, that the stove in question, being fitted, adapted and designed for the use of the house would pass by a conveyance of it, as part of the real estate. But it was doubtless competent for the owner to sell it as personal, and if the purchaser or any under him thereupon takes it away, the former owner has no just cause of complaint. A tree, while standing, is part of the realty, and belongs to the owner of the land, upon which it grew. But if he sells it, for a valuable consideration, the purchaser may cut and carry it away, and the sale is a license for him to enter to do so. A fence is part of the realty, but it may be sold or reserved as personal property. Ropps v. Barker & al. 4 Pick. 239. When Randall purchased the stove, no other person had any interest in it, except the plaintiff and Jonathan Small. The plaintiff sold to Randall, and Jonathan Small finally acceded to that sale, and bought it of Randall for a valuable consideration, by the advice of the plaintiff. By the consent, then, of all concerned, and for an adequate price, Small became the owner of the stove, by a title independent of the house, from which it had been severed by the sale.

It would be against every principle of justice, to permit the plaintiff, after having sold it as personal, to turn round and reclaim it, as part of his real estate. The defendant is a purchaser from Small, and has the same rights. The plaintiff and Small stood in the relation of mortgagor and mortgagee. Small, while he occupied the estate, was the tenant at will of the plaintiff, and when he took possession by process of law, he terminated that tenancy. But Small had the right, with such assistance, as might be convenient or necessary, of ingress, egress, and regress for the purpose of removing his goods and personal property. Davis & al. v. Thompson, 13 Maine R. 209. The entry of the defendant with Small, in furtherance of this object, was justified.

Nonsuit confirmed.