Godard and others vs. Gould & Strong, 14 Barb. 662

By the Court, T. R Strong, J. By the terms of the contract between the plaintiffs and Stoddard, Freeman & Co., the machinery was to be set up in the mill of the latter, the plaintiffs furnishing a suitable person to superintend that business, and the plaintiffs were to remain the owners of it until it should be paid for.

The machinery was set up in the mill according to the contract, and the evidence clearly shows that the mode of annexation was such that it could be removed without injury to the building; that the building would after its removal, and without any labor or expense, be equally as well fitted and prepared to receive other machinery of a similar kind as it was for the reception of that in question.

Upon these facts, and a balance of the price remaining unpaid, I am satisfied the law is, that the machinery did not by the annexation, become part of the realty, but continuéd to be personal property, and to belong to the plaintiffs. In Smith v.

Benson, (1 Hill, 176,) it Was held that a building for a dwelling or grocery, erected by one person on the land of another, with an understanding between them that it might be removed at any time, was not part of the freehold,. but personal property, Oowen, J., by whom the opinion of the court was delivered, says : “ Prima facie such a building would be a fixture, and would not be removable. The legal effect of putting it on another’s land would be, to make it a part of the freehold. But the parties concerned may control the legal effect of any transaction between them, by an express agreement.” In Mott v.

Palmer, (1 Comst. 564,) the general principle that one man may own the soil, and another buildings and fixtures upon it, and that in such a case those erections will be personal property, is recognized, and Smith v. Benson, and several other cases, are referred to in support of it, (See also Smith v. Jenks, 1 Denio, 580; 1 Comst. 90.) The deed of Stoddard and wife to the defendants, did not affect the right of the plaintiffs to the machinery. The machinery being personal property, the grantors could not convey a greater interest in it than they had.

It is not material whether or not it would have passed by the deed without the special clause embracing fixtures, and as part of the land, but for the agreement that the plaintiffs should remain the owners ,* it was in either case personal property, belonging to others, whose title the grantors could not transfer. Hor does the fact that the defendants are bona fide grantees in the conveyance, make any difference.

The plaintiffs in no way consented to the conveyance ; they have not practiced any fraud on the defendants; their equities are at least equal to those of the defendants, and the recording act has no application to the case. I am not aware of any principle upon which it could be held that the plaintiffs have lost their title. If an owner of land upon which a crop of wheat is growing, conveys the land to a bona fide purchaser, the conveyance will transfer the wheat, if the grantor owns it, but not, if it belongs to a third person.

In the latter case, the deed has no more operation upon the title of the third person, than if the wheat had been severed from the soil at the time the deed was executed. A greater effect cannot be properly given to the conveyance in this case. [Cayuga General Term, June 6, 1853. Selden, Johnson and T. R. Strong, Justices.] I am of opinion, therefore, that the decision at the circuit was right, and that the judgment should be affirmed. Judgment at special term affirmed.