Roberts v. Caple

• Decision Date: 10 April 1913
• Citation: 62 So. 343,8 Ala.App. 444
• Parties: ROBERTS v. CAPLE.
• Court: Alabama Court of Appeals

62 So. 343

8 Ala.App. 444

ROBERTS v. CAPLE.

Court of Appeals of Alabama

April 10, 1913

Appeal from Circuit Court, St. Clair County; J.E. Blackwood, Judge.

Action by J.W. Caple against J.W. Roberts in detinue and trover for a house. Judgment for plaintiff, and defendant appeals. Affirmed.

John W Inzer, of Ashville, for appellant.

M.M. & Victor Smith, of Pell City, for appellee.

PELHAM J.

On the trial in the circuit court, where the case was brought on an appeal from a justice's court, a substitute complaint containing two counts was filed in lieu of a lost complaint. Count 1 is in detinue, and claims the right to recover of the defendant a certain described frame house, which it is alleged was erected on a certain lot by the plaintiff under a contract entered into with one A.D. Harrold, who was the owner and in possession of the lot at the time the house was built; and that under the terms of the agreement the house was not to become a fixture to the realty, but was to remain the personal property of the plaintiff, and that he was to have the right to remove it from the lot. Count 2 is in trover, alleging a conversion of the house by the defendant. The defendant joined issue on both counts of the complaint and the case was tried on the issues so joined.

The evidence, without conflict, shows that the plaintiff (appellee here) erected the house on the lot at a time when it was owned by and in the possession of one A.D. Harrold, under an agreement with Harrold that it was not to become a fixture to the realty, but was to remain the property of the plaintiff, removable by him at his pleasure. Harrold had purchased this lot from one Sam Braverman, who conveyed to Harrold by warranty deed in the usual form and took a mortgage to secure the unpaid part of the purchase money. Subsequently Harrold, not having paid the balance of the purchase money, conveyed the lot back to Braverman, and thereafter Braverman conveyed to the defendant, J.W. Roberts. All of these conveyances were by warranty deed, and contained no reservation of the house, or other stipulation or provision with reference thereto. The evidence shows that when Harrold conveyed to Braverman it was known and understood by both parties to the transaction that the house in question was not a fixture, but belonged to the plaintiff under the agreement between Harrold, who owned the lot at the time the house was erected, and the plaintiff, who built it and when Braverman sold to the defendant, the defendant had prior knowledge that the plaintiff claimed to own the house and was informed of matters reasonably calculated to put him on notice that the house was the personal property of the plaintiff, and not a fixture upon the land. The defendant himself testified in this connection that he had lived in the small town where the lot was situated on which the house was erected for about five years, and that he knew the house had been built by the plaintiff and his father, and that on one occasion a short time before he bought the lot from Braverman he had offered to buy this house from the plaintiff, who he knew had never owned the lot upon which it was erected. There is also other evidence having a tendency to show that the defendant knew the house was personal property and not a part of the realty, and that it belonged to the plaintiff. The plaintiff testified that he had informed the defendant of the fact that he (plaintiff) owned the house before the purchase of the lot by him (defendant) from...