Ogden v. Stock

• Decision Date: 30 April 1864
• Citation: 85 Am.Dec. 332,34 Ill. 522,1864 WL 3016
• Parties: WILLIAM B. OGDENv.GUSTAVE STOCK.
• Court: Illinois Supreme Court

34 Ill. 522

1864 WL 3016 (Ill.)

85 Am.Dec. 332

WILLIAM B. OGDEN

v.GUSTAVE STOCK.

Supreme Court of Illinois.

April Term, 1864.

APPEAL from Superior Court of Chicago.

The case is sufficiently stated in the opinion.

Scammon, McCagg & Fuller, for appellant.

Wm. Hopkins, for appellee.

BECKWITH, J.

This is an action of replevin, brought by the appellant for a dwelling house, alleged to have been wrongfully removed from a lot belonging to him, by the appellee. The pleas are non detinet, and property in the appellee. On the trial, it was admitted that the appellant, in 1856, and from that time to the commencement of the suit, had been the owner in fee of the lot from which the building was removed; and it appeared in evidence that while he was the owner of the lot, in 1856, he made a contract with one Schuster, to sell him the same for $525, of which $25 was paid in cash, and the residue was to be paid in five annual installments, the last of which fell due September 1, 1861. Four of the installments had become due, but only one of them had been paid. The contract provided that if the vendee should make default in any of the payments, the vendor should have the right to consider the agreement terminated, and to treat Schuster, his representatives or assigns, as tenants at will, at a specified rent.

In 1858, while Schuster was in possession of the lot under the contract, he and the appellee erected thereon a dwelling house, under an agreement that each was to own one-half of the same. The house was placed upon blocks, resting on boards, lying on the ground. For about two years after the house was finished, Schuster occupied it with his family, and in January, 1861, sold his share to the appellee, to whom he gave permission to occupy the lot until September, 1861. The house remained on the lot until June, 1861, when it was removed by the appellee. The appellant demanded possession of the house, and upon the refusal of the appellee to surrender the same, commenced this suit for its recovery. Upon the trial in the court below, the jury were instructed that the appellant was not entitled to recover. The general rule of the common law is, that things affixed to the realty become part of it, and belong to the owner thereof; but erections, which, from their general nature and character, are ordinarily deemed a part of the freehold, may be made in such manner, or under such circumstances, as render them distinct and separate property. In order to do this, the person making the improvement, must have the right to determine whether or not the erection shall become a part of the realty; and it must appear that it was not intended to form a part thereof.

The intention may be inferred, in some cases, from the manner in which the improvement is attached to the realty; and in others from the nature of the title of the party making it, or from the purpose with which it was made; but if the party making the improvement, as between himself and the owner of the soil, has no right to erect the same, as property separate and distinct from the freehold, an intention so to do, no matter how clearly manifested,...