Myrick v. Bill
| Citation | 17 N.W. 268,3 Dakota 284 |
| Parties | Myrick v. Bill and others. |
| Decision Date | 01 October 1883 |
| Court | United States State Supreme Court of North Dakota |
Appeal from district court of third judicial district for Stutsman county.
CHURCH J.
This was an action of claim and delivery, brought to recover possession of two buildings in Jamestown, Dakota territory one of which was a dwelling-house and the other a store connected therewith. The plaintiff claims these buildings by virtue of a bill of sale thereof from one Henry C. Miller dated October 19, 1878, by the terms of which Miller, in consideration of $1,000, the receipt of which is acknowledged, "grants, bargains, sells, and releases to the party of the second part, [the plaintiff,] his heirs and assigns, all his right, title, and interest to" the property in question. The defendant Rose A. Bill was formerly the wife of Miller. The answer, after a general denial of the ownership of right of possession of the plaintiff, avers (1) that these buildings are fixtures upon the land whereon they rest; (2) that on October 19, 1878, they were owned possessed, and occupied by Henry C. Miller, who continued to own and occupy them until his death, in the spring of 1879 that the land upon which said buildings were, and at all times have been, situated, were sold and conveyed by deed of warranty, under seal and of date May 14, 1879, and executed and delivered by the Northern Pacific Railroad Company, a corporation, to the said Henry C. Miller, by virtue of which deed said land became the property of said Henry C. Miller, his heirs and assigns, forever; and that on the decease of said Miller, in the spring of 1879, the said land and buildings succeeded to the said Rose A. Bill, (then Miller,) as his widow, and _______ Miller, his only surviving child, who ever since had owned, possessed, and occupied said property by virtue of the title and possession aforesaid. There was a general verdict for the defendant. Several errors are assigned, of which we shall notice only those which seem essential to a proper disposition of the case.
And, first, as to the necessity for a demand before suit brought. The rule which requires a demand is a technical one. The reason of it is that the law presumes that the party in possession of property not his own will respect the rights of the true owner when informed of them, and that upon demand being made he will surrender without suit. But where the defendant claims to be the owner of the property, he ought not to be permitted to set up such claim, and then defeat a recovery by the plaintiff under the pretense that he would have surrendered the property had he been requested so to do.
Where the circumstances are such as to show that a demand would have been unavailing, no demand is necessary, (Shoemaker v. Simpson, 16 Kan. 43; Simpson v. Wrenn, 50 Ill. 224; Smith v. McLean, 24 Iowa, 322; Wells, Repl. §§ 345, 349, 374;) and when, as in the present case, the plaintiff's right to recover is contested by the defendant upon a claim of superior right, the defendant cannot set up a want of demand as a reason for his failure to surrender. If he desires to rely upon the omission to make demand, he should show a willingness to surrender upon proper demand made, (Homan v. Laboo, 1 Neb. 207;) and in such case it is, at least, extremely doubtful whether any further penalty than costs ought to be visited upon plaintiff.
No demand was necessary in this case, and the court having instructed the jury that, unless they could find from the evidence that a demand was made before suit brought, they must find for the defendant, the error is sufficient to require a reversal of the judgment; but since other questions presented by the record are of general interest, and are properly before the court, and in the event of a new trial will have a controlling influence upon the result, we deem it our duty to consider them.
The respondents, in their brief summitted to the court, insist that these buildings were fixtures, and as such not the subject of replevin, or an action of claim and delivery under the statute; and the appellant, with equal earnestness, contends that they did not possess the statutory character of "building permanently resting upon land;" but it is not necessary to go into an extended discussion of this point, since we think the law was stated with substantial correctness by the district judge, as follows: "Ordinarily a building placed upon land is a fixture, becomes a part of the real estate, and passes with it; but the building may be personal property under some circumstances." "Parties are at liberty to make any agreement or arrangement with regard to their property, to dwelling-houses, or any other property, that they see fit; and if the agreement is such a one as will make the property personal property, as between these parties it is personal property, and may be so treated."
Judge COOLEY states the rule substantially in these words: "The parties concerned may, by agreement in due form, give to fixtures the legal character of realty or personalty at their option, and the law will respect and enforce their understanding whenever the rights of third parties will not be prejudiced; that a house, constituting part of the realty, may be mortgaged or sold separate from the land, and the mortgage or sale be perfectly valid if made in such form as to be sufficient under the statute of frauds. ***" Cooley, Torts, §§ 427, 430; 2 Smith, Lead. Cas. (2d Amer. Ed.) 219; Wells, Repl. § 61; Cochran v. Flint, 57 N.H. 514, (544;) Russell v. Richards, 1 Fairf. 429; S. C. 2 Fairf. 371; Smith v. Benson, 1 Hill, 178.
Now the appellant, as before stated, claims title to this property under the bill of sale referred to, and insists that by the execution and delivery of that instrument Henry C. Miller the vendor, gave to these buildings the legal character of personalty; and we think that, under the law as above stated, such should be held to be its effect, in so far as it is operative for any purpose in this action. It becomes necessary to determine, therefore, the extent of its operation. The defendants, by their answer, aver that on the date when this bill was executed said buildings were owned,...
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