#### R. W. H. FEIMSTER v. R. W. JOHNSON and W. D. HALL.

A whiskey still was hired for the season, to parties who set it up, encased in masonry, upon the lands of one of them; during the season, it was sold by the owner to the plaintiff; shortly afterwards it was levied ■upon, and, after the close of the season, and whilst it was still encased as above, was sold, by one of the defendants as a constable, at the instance of the other (who became purchaser,) under a judgment against the former owner : *Reid,*

1. That the defendants were liable to the plaintiff in an action of *troven'.*

2. That the doctrine of *fixtures*had no application, under the circumstances.

Trover, tried before *Mitchell,*at Eall term 1869, of I REBELE Court.

The facts were; that the defendant Johnson, and one Long, intending to distil whiskey, hired a still from one G-uy, its owner, for the Winter and Spring of 1866; they removed it to the land of Johnson, and set it np encased in masonry, in the usual way; there it remained until the *conversion*complained of; on the 27th of February 1866, the plaintiff bought the still from Guy, and notified the bailee Long, that he had done so; in April 1866, the defendant Hall levied on the still, as the property of Guy, by virtue of an execution in favor of the other defendant Johnson; in May, Long and Johnson ceased their operations as distillers; in June, the still was sold under the execution, and bought by Johnson, the plaintiff being present and forbidding such sale, and demanding possession, which was refused.

The defendant asked his Honor to instruct to jury :

1. That as the still was then affixed to the realty, the sale by Guy to Eeimster was void under the Statute of Frauds.

2. That, for the same reason, it was not subject to be sold in the manner that it was, by the constable.

The Court instructed the jury, that if they believed the evidence, the plaintiff was entitled to their verdict.

Verdict for the plaintiff; Buie &o.; Judgment, and Appeal.

*260Furches, for the appellant.

*Gleinent and W. P. (Jalckvell, contra.*

Settle, J.

The still in controversy was hired by Long and Johnson from the owner Guy, for the purpose of distilling whiskey during the Spring of 1866. This was a contract of bailment, and gave the bailee the possession and temporary use of the still, but did not divest the owner of his title, or prevent him from selling the property. In a short time after this transaction, Guy sold the still, for a valuable consideration, to the plaintiff. This sale transferred the title to the plaintiff, and authorized him to take possession of. the still, when the temporary bailment was ended. The plaintiff, soon after his purchase, notified Long of the feet, who made no denial of his claim. In April 1866, the still was levied upon by the defendant Hall, at the instance of the defendant Johnson, and sold at public sale to the defendant Johnson, after the time of the bailment had expired; the plaintiff being present, and forbidding the sale. This sale was an unlawful conversion of the property of the plaintiff, and gave him a good cause of action against the defendants.

It was insisted by the defendant, that, as the still' was encased in masonry on the land of Long, it was a fixture; and the sale by Guy to the plaintiff' was void, because the contract was not in writing, as required by the Statute of frauds. The doctrine of fixtures has no application to the case. Long, the owner of the land upon which the still was placed, makes no such claim; but if he did, it could not be maintained. A and B rent the still of C, to be used for a short time; they set it up on the land of A, and then B turns around and says that it is now affixed to the freehold of A and therefore 0 has lost all of his interest therein, and that *he,*who owns neither land nor still, can assert it. This carries the doctrine of fixtures to a greater extent than has ever been claimed for it before. AsA general rule, whatever isat-*261tached to land is understood to be a part of the realty; but as this depends, to some extent, upon circumstances, the rights involved must always be subject to explanation by evidence.

Whether a thing attached to land he a fixture or chattel personal, depends upon the agreement of the parties, express or implied. *Naylor*v. *Collins,*1 Taunt. 19; *Pervy*v. Brown, 2 Stark. 403; *Wood*v. *Hewitt,*55 E. C. L. 913.

A building, or other fixture which is ordinarily a part of the realty, is held to be personal property when placed on the land of another by contract or consent of the owner: 1 Greenl. Cruise 46.

There certainly was an understanding between the lessor and the lessee, that the still should not become a part of the realty, butshouldretainitscharacteraspersonalty, andremain the property of the lessor.

The first position of the defendant is only surpassed in boldness by his second, which is, that the still was not the subjectof sale by a constable. It is difficult to treat the matter gravely, when we remember that the still was levied on by the defendant Hall, at the instance of the defendant Johnson, and that the defendant Johnson became the purchaser at the sale, when the plaintiff was present, doing all in his power to prevent it.

There is no error in the charge of his Honor, and the judgment must be affirmed.

Pee CtrElAJvr. Judgment affirmed.