Selected Cases on Real Property

Purchase of this book includes free trial access to www.million-books.com where you can read more than a million books for free. This is an OCR edition with typos. Excerpt from book: against objection, that at the time she made the agreement with defendant to sell him the land she reserved the rails. There was no reservation in the deed. The rails, prior to being piled up by plaintiff, had been in this lane fence nearly 50 years. Plaintiff liiul no use for the lane after the partition....
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Purchase of this book includes free trial access to www.million-books.com where you can read more than a million books for free. This is an OCR edition with typos. Excerpt from book: against objection, that at the time she made the agreement with defendant to sell him the land she reserved the rails. There was no reservation in the deed. The rails, prior to being piled up by plaintiff, had been in this lane fence nearly 50 years. Plaintiff liiul no use for the lane after the partition. Defendant testified that plaintiff, when making the agreement to sell, wanted to reserve the rails, but he would not consent to it, and bought the place as it was. The circuit judge submitted the question to the jury, instructing them that the rails piled upon the premises, and not being in any existing fence at the time of the sale, were personal property, and that, unless they found that the plaintiff sold the rails to the defendant ? agreed that they should go with the land ? she was entitled to recover. The court was right, and the judgment must be affirmed. Rails piled up, under the circumstances that these were, are personal property. There can be no claim that fence-rails are of necessity part of the realty unless they are in a fence, and even in such case they may remain as personalty, if such be the agreement between the parties interested at the time the fence is built. Curtis v. Leasia (Mich.), 44 N. W. Rep. 500. The contention made, that plaintiff is estopped from claiming these rails because, following the description by metes and bounds of the premises in her warranty deed to defendant, the deed continues as follows: Being the same premises which were assigned by said commissioners in partition to Mary E. Harris, together with all and singular the hereditaments and appurtenances thereunto belonging, etc. It is argued that she thereby conveyed these rails, because they were a part of the realty when she received it in partition. We do not consider this stateme...