Clements v. Morton

• Decision Date: 02 July 1917
• Docket Number: 6 Div. 626
• Citation: 76 So. 306,200 Ala. 390
• Parties: CLEMENTS v. MORTON.
• Court: Alabama Supreme Court

76 So. 306

200 Ala. 390

CLEMENTS v. MORTON.

6 Div. 626

Supreme Court of Alabama

July 2, 1917

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by J.P. Clements against A.F. Morton. Judgment for defendant and plaintiff appeals. Transferred from the Court of Appeals under section 6, page 450, Acts 1911. Reversed and remanded.

R.D Coffman, of Birmingham, for appellant.

Frank S. White & Sons and Frank M. Dixon, all of Birmingham, for appellee.

GARDNER J.

The substance of the testimony in this cause, as shown by the foregoing statement of the case, discloses that the one-room plank house erected by plaintiff's stepmother with her own means, after the death of the father of plaintiff, was erected with the full understanding and agreement of all the heirs that the house should remain hers, to be disposed of as she saw fit, and that the same became a chattel with the right of removal.

"Houses, as a general rule, are part of the freehold and pass or descend with the land. The prima facie intendment is that they are part of the realty; and if there be no proof to take the case without the general rule, they are part and parcel of the land, and whoever owns the land owns the houses standing thereon. *** But this is not a conclusive presumption. It may be rebutted." Harris v. Powers, 57 Ala. 139; Powers v. Harris, 68 Ala. 409.

"By express contract between the parties the nature and status of the chattel as personal property was preserved and retained. That it was competent for the parties to contract to this end we think there can be no doubt. Nothing, perhaps, could be considered in its character more permanent, and more of a fixture, and as forming a part of the realty, than a house or building erected on the land, and yet a house may by contract of parties become a chattel with right of removal." Broaddus v. Smith, 121 Ala. 335, 26 So. 34, 77 Am.St.Rep. 61.

See, also, in this connection, Chalifoux & Co. v. Potter, 113 Ala. 215, 21 So. 322; Johnston, Rec., v. Philadelphia Mtg. Co., 129 Ala. 515, 30 So. 15, 87 Am.St.Rep. 75; Middleton v. Alabama Power Co., 71 So. 461; Roberts v. Caple, 8 Ala.App. 444, 62 So. 343.

The house, under the facts here disclosed, remained personal property, and subject to be disposed of as such, and the statute of frauds therefore is without application. Authorities supra.

In the instant case the right of no innocent third party is involved, as the undisputed evidence shows the defendant purchased the land with...