William H. Milton & another vs. Richard G. Colby & another, 5 Met. 78

Shaw, C. J. The court are of opinion, that the plaintiffs took no interest, by the mortgage made to them by Diggles of the house in question, and therefore that they cannot recover in this action, even if in other respects they could maintain an action against the defendants, as assignees ; which is very doubtful. We say it is doubtful, because the defendants, as assignees of Diggles, acknowledged no right of the plaintiffs to the prop - erty, but on the contrary claimed the whole adversely, for the creditors.

If therefore the plaintiffs had any title under their mortgage, subject to which the defendants took their assignment, the plaintiffs’ remedy must be on the property, and not on the money for which the defendants sold their title. But the ground, upon which the court decide the case, goes not merely to the remedy, but to the right of the plaintiffs, and is, that by the mortgage they took no title, because Diggles had none which could pass by that deed.

His right to the house was foundt d wholly on the agreement of May 13th 1839, between John Nesmith, owner of the land, on the one side, and Simpson and himself on the other. It was the common case of an agreement for a sale of the land, upon certain terms and conditions. Simpson and Diggles agreed to erect a house on it, and when the house should be erected, Nesmith was to convey the land by deed to them, upon which they were to mortgage the estate back to Nesmith, to secure the purchase money.

The house was erected, but no deed was made by Nesmith ; and so it stood, when Biggies mortgaged the house to the plaintiffs, as personal property. It appears to us, that the effect of this agreement was not that the builders of the house were to have a property in the house, as a chattel; on the contrary, it was to constitute a part of the realty, and pass with it; and when the agreement should be executed according to its terms, it would enhance the value of the estate, as a security to Nesmith for the purchase money.

The general rule is, that the erection of a building on the land of another makes it part of the realty, and of course it becomes the property of the owner of the soil ; and it is only in virtue of an express agreement between the owner and builder, that one can have a separate property in a building, as a chattel, with a right to remove it.

The agreement between these parties, so far from being such an agreement, was in legal effect an agreement that the building and soil should be united and held together as one tenement; and the security of the builders was in the personal agreement of the owner, by which they could require him, on complying with the terms of the agreement on their part, to convey the fee to them, by which they would obtain a legal title to the buildings with the soil.

No interest then passed by Biggies’s deed to the plaintiffs ; none in the building, for it was part of the realty ; and none in the real estate, because ttie fee was in Nesmith. Plaintiffs nonsuit