#### Conklin v. Parsons.

1. Fixtures — set-oef.—Where parties exchange farms with each other, and at the time of the exchange, rails had been placed along the boundary line of one of the parties, by him, in contemplation of erecting a fence with them, and after the exchange, the party into whose possession they fall, thereby converts them to his own use, and sues for a balance due him on the exchange of the lands, *held,*that the value of. the rails could not be set off against the claim, though there had been an unlawful conversion of them, the statute of set-off’ relating only to goods sold. If, the appropriation of the rails was a tort, it could not, under the statute, be the subject of set-off.

2. Error — set-oef.—While it is error for the court to admit evidence of the unlawful conversion of property as a set-off, in an action of assump-sit, yet if it instructs the jury to reject the set-off, and they find accordingly, the error is thereby cured.

3. Fixtures. — Where rails are promiscously placed along the line of a contemplated fence, and before its erection the land is conveyed, the better opinion is, that they pass by the conveyance as a part of his realty.

(1 *Chand.*240.)

EEEOE to tbe Circuit Court for *Fond du Lac*County.

Tbis was an action of assumpsit to recover tbe difference in value of certain lands, wbicb bad been exchanged between tbe parties, and wbicb tbe plaintiff in error, tbe defendant below, bad agreed to pay to Parsons, tbe defendant in error and *265plaintiff below. Against that claim tbe defendant, on tbe trial, under a notice subjoined to bis plea of tbe general issue, offered proof of a set-off of tbe value of certain rails, wbicb, previous to tbe time of tbe exchange of lands, bad been placed there by bim for constructing a fence, and wbicb bad been appropriated by tbe plaintiff below, to bis own use, subsequently to tbe exchange of the lands, and tbe taking possession thereof by tbe respective parties.

Tbe plaintiff objected to tbe allowance of tbe evidence of the conversion of tbe rails to bis use, as a set-off against bis claim for the agreed difference in tbe exchange of lands. Tbe court admitted tbe evidence ; and to 'this decision tbe plaintiff below excepted.

It was then admitted by tbe counsel of tbe respective parties, that tbe only matter of dispute between tbe parties in tbe suit was tbe right of property in the , rails, and that tbe rails were of tbe value of fifty dollars.

Tbe court charged tbe juiy that tbe rails in question passed to and became the property of tbe plaintiff on tbe exchange of tbe lands, being at tbe time of tbe exchange upon tbe lands, wbicb, by tbe exchange, came into tbe possession of tbe plamtiff; and that being designed for tbe construction of a fence upon tbe premises where they then were, and there being no special reservation of them by tbe defendant, they passed by tbe exchange of tbe real estate to tbe plaintiff, and became his properly. The court farther instructed the jury that tbe plaintiff bad established a right to tbe recovery of tbe sum agreed to be paid by tbe defendant, as tbe difference in tbe exchange of lands; and tbe sum so proved to have been agreed upon, being fifty dollars, the jury found a verdict m accordance with it, under tbe instructions of tbe court. To this charge and mstructions of tbe judge, tbe counsel of tire defendant excepted, claiming and insisting that tbe rails in question were not a part of'the freehold, and did not pass with tbe exchange, and that tbe defendant bad a right to waive tbe *266tort of the plaintiff, in the appropriation of the rails to his use, and set off their value against any claim he established in the exchange of the lands. •

*J. M. Gillet,*for plaintiff in error,

argued that nothing passed by the sale of land, except such as were fixtures, and such only as were distinctively such. To this point the counsel cited the case of *Walker v. Sherman,*20 Wend. 636 ; that a fixture consisted of that which had a permanent annexation (42 Law Lib. 160) ; that the rails in question, not being laid into a fence were mere chattels, and could not pass by a sale or exchange of the land on which they were, as part of the realty.

*A. L.*Williams, for defendant in error,

insisted that the rails in question, being strewn along the boundary line dividing the lands of the parties, and designed for a fence in that place, and not having been reserved by the defendant in the exchange of lands, and being situated upon lands which passed to the plaintiff below, in the exchange, were not chattels, but partook of the realty.

Whiton, J.

The judgment rendered in this case by the circuit court of Fond du Lac county, must be affirmed, although we should be of the opinion that the court before whom the cause was tried erred in the instructions which it gave the jury.

The bill of exceptions shows that the suit was brought by *jParsons*against *Gonklin*to recover the difference in value of certain lands which *Gonklin*had agreed to pay to *Parsons.*On the trial *Gonklin*offered to set off the value of certain rails, which he had placed along the boundary line of the land which he had conveyed to *Parsons*previously to the conveyance, and which were not laid up into a fence, but which had been placed on the line for the purpose of building the fence. The evidence to prove the set-off was objected to by the attorney of *Parsons,*but the objection was overruled by the court and *267the evidence admitted. This decision we think erroneous. There was no evidence of a sale of the rails to Parsons, unless they passed by the conveyance of the land, and the right of *Oonlclin*to prove the set-off was claimed solely on the ground that there had been a conversón of them by *Parsons.*

Without deciding the question whether a plaintiff, under the circumstances, could waive the tort and sue in assumpsit for the value of the rails, we think that our statute regulating set-ofis will not permit a defendant to set off a demand of this nature. Eev. Stat. 278.

The statute allows a defendant to set off a demand for goods sold ; and we think the better construction of it to be, that he may set off such a demand where there has been an actual sale, and not, as in this case, a mere conversion of the property.

The bill of exceptions further shows that the court instructed the jury that the rails passed by the conveyance from *Oonlclin*to *Parsons*as a part of the freehold, and directed the jury to find for the plaintiff *Parsons,*and a verdict was rendered according to the instructions. It is clear that the instructions given to the jury corrected the error committed, in admitting the evidence to prove the set-off; and it is equally clear that the judgment must be affirmed, although the instructions given to the jury were erroneous, for the reason that the only defense which *Oonlclin*interposed to prevent *Parsons*from recovering was the set-off, which, as we have seen, could not avail him.

But we are by no means satisfied that the instructions were wrong. We have been referred to no case which is exactly parallel to this, and can find none ; but the better opinion, we think, is, that where rails have been placed along- the line of an intended fence, for the purpose of being laid into the fence, though not actually applied to that use, they pass by a deed of the land, there having been a manifest appropriation to the use of the land.

Judgment affirmed.