#### Conklin, Pl’ff in Error, *vs.*Parsons, Def’t in Error.

Where parties exchange lands with each other, and one agrees to give to the other a certain sum as the difference — and where, at the time of the exchange, theré Were rails strewn along the boundary line, at the time, in contemplation of erecting a fence — which rails, after the exchange of lands, are appropriated by the party into whose possession the same falls by the exchange, it is questionable whether, in an action of assumpsit, the party who sues in assumpsit, to recover the money in ’exchange of lands, is subject to have the value of the rails before mentioned, set off as against his claims. If the appropriation of the rails was a tort, it cannot, under the Statute, be the subject of set-off in such a case.

It is erroneous for a Judge to admit, where objection is made, evidence of the conversion of property as a set-off, in an action of as-sumpsit; but if ho admits improper evidence, and in his final instructions, charges that the s'et-off is inadmissible, and the jury so find, it will cure the error.

Where rails are promiscuously placed along the line of a contemplated fence, and before its erection the land is conveyed, *the hotter*opinion is that they pass by the conveyance, as a part of the realty.

Error to Fond du Lac Circuit Court.

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

*241The- plaintiff below objected to the allowance of the evidence of the conversiori of the rails to his use, as a set-off against his claim for the agreed difference in the exchange of lands. The Judge admitted the evidence; and to this decision the plaintiff below excepted.

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

The Judge charged the jury that the rails in question passed to and became the property of the plaintiff below, oh the exchange of the lands; being at the time of the exchange, upon the lands, which, by the exchange, came into the possession of the plaintiff below; and that being designed for the construction of a fence upon the premises where they then were, and there being no special reservation of them by the defendant below, they passed by the exchange of the real estate to the plaintiff below, and became his property. The Judge further instructed tfie jury that the plaintiff below had established a right' to the recovery of the sum agreed to be paid by the defendant below, as the difference in the exchange of lands; and the sum so proved to have been agreed upon, being fifty dollars, the jury found a verdict in accordance with it, under the instructions of the Judge. To this charge and instructions of the Judge, the counsel of the defendant below excepted, claiming and insisting that the rails in question were not a part of the freehold, and did not pass with the exchange, and that the defendant belowhad a right to waive the tort of the plaintiff below, 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.

*242
      *J. M. Gillelt,*for Plaintiff in Error.

*■Jl. L. Williams,*for Defendant in Error.

On the part of the defendant below it was argued that nothing passed by the sale of land, unless such as were fixtures, and such only as were distinctively such., To this point the counsel cited the case of *Walker vs. Sherman,*20 *WendeWs R,,*636.

That a fixture consisted of that which had a permanent annexation. *Law Library, Vol.*42, *p.*160. That the rails in question, not being laid into a fence,, were a mere chattel, and could not pass by á sale or exchange of the land on which they were as part of the realty.

On the part of the plaintiff below ft was insisted that the i ails in question, being strewn along the boundary line dividing the lands of the parties, and designed for a local fence, 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 a chattel, but partook of the realty.

*By the Court.*

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 Parsons against Conklin to recover the difference in value of certain lands which Conklin had agreed to pay to Par-, sons. On the trial Conklin offered to set-off the value of’ pertain rails,which he had placed along the boundary line of the land which he had conveyed to Parsons previously *243to 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 the 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 Conklin to prove the set-off was claimed solely on the ground that there had been a conversion of them by Parsons,

Without deciding the question whether a plaintiff under the circumstances could waive the tort and sue in assump-sit for the value of the rails, wp think that our Statute regulating'set-offs will not permit a defendant to set-off a demand of this nature, *R. S.,*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 Conklin 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 bé affirmed, although the instructions.givén to the jury were e.rroneous, for the . reason that the only defence which Conklin interposed to prevent Parsons from recovering was the set-offj which as we haye seen could not avail him.

*244But 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.