Pile v. Holloway

• Citation: 107 S.W. 1043,129 Mo.App. 593
• Parties: G. V. PILE, Respondent, v. L. G. HOLLOWAY, Appellant
• Decision Date: 17 February 1908
• Court: Court of Appeals of Kansas

107 S.W. 1043

129 Mo.App. 593

G. V. PILE, Respondent, v. L. G. HOLLOWAY, Appellant

Court of Appeals of Missouri, Kansas City

February 17, 1908

Appeal from Sullivan Circuit Court.--Hon. John G. Butler, Judge.

AFFIRMED.

Judgment affirmed.

Calfee & Eubanks for appellant.

(1) If the house was personal property between the parties as claimed by respondent then respondent had a right to remove it from the premises at the expiration of the lease or at the abandonment of the leasehold; and if he did not remove it at such time he forfeited all rights thereto and it immediately became a part of the realty and therefore the property of appellant. 1 Washburn on Real Property (4 Ed.), p. 27; 8 Am. and Eng. Ency. of Law (1 Ed.), p. 57; Walsh v Sichler, 20 Mo.App. 380; Lacy v. Giboney, 36 Mo. 324; Williams v. Lane, 62 Mo.App. 68. (2) If a tenant of leased premises erect a house upon the landlord's estate he has a right to remove the same while in possession of the premises. 1 Washburn on Real Property (4 Ed.), p. 4; 1 Washburn on Real Property (4 Ed.), pp. 633 634; Taylor's Landlord and Tenant, sec. 551, p. 412, sec 553; 8 Am. and Eng. Ency. of Law (1 Ed.), p. 48; Insurance Co. v. Tillery, 152 Mo. 421; Railroad v. Bradbury, 106 Mo.App. 457.

Wilson & Clapp for respondent.

(1) Under the facts in this case the henhouse was personal property, and belonged to the respondent, and the appellant knowing it was respondent's, was answerable to him for its value, when he sold it to Campbell. Priestley v. Johnson, 67 Mo. 632; Nieswanger v. Squier, 73 Mo. 192; Brown v. Turner, 113 Mo. 27; Muir v. Jones, 19 L. R. A. 441. (2) But even on appellant's own theory the judgment should be affirmed for the reason that no reasonable time was given respondent in which to remove the henhouse.

OPINION

BROADDUS, P. J.

--This is an action of conversion: The plaintiff erected a henhouse on the land of his father with the understanding that it was to remain plaintiff's property. It developed that plaintiff's father was the owner of a certain tract of land in Sullivan county; and that for purposes of his own, plaintiff wanted his father to erect a henhouse on said land near to the house where he himself lived. This the father declined to do but told plaintiff that he might do so and the house should remain his, and that he could move it off if he "wanted to." The father sold the land to the defendant with the understanding that the henhouse did not go with the land. This was in March, 1906. In October following the defendant sold the land and conveyed it to the purchaser without any reservation as to the henhouse.

There is evidence to the effect that in September defendant requested that the house be moved off his land and some three or four days before he sold it he asked plaintiff to take it off. There is no dispute but what all parties recognized plaintiff as the owner of the property. Upon the facts stated the court directed the jury to find a verdict for plaintiff to the value of the property.

The position of defendant is that notwithstanding plaintiff was the owner of the property, it being a fixture, it was his duty to have moved it off the premises within a reasonable time, after the land was sold, and what was a reasonable time was a question for the jury and not for the court.

If...