JOSEPH MILLS versus JONATHAN PEIRCE

This was a writ of entry for “ a certain store, situated in Deerfield.” The bounds were duly described, and the de-mandant counted on his own seizen within twenty years.

The cause was tried here upon the general issue, at September term, A. D. 1818, when it appeared in evidence, that one Carpenter, in Á. D. 1790, occupied, as owner, both the store and the land adjoining; that the store alone was at that time set off to one Williams, by an execution of his against Carpenter; that, by subsequent deeds, it had passed from Williams through various hands to the demandant; that the land adjoining and beneath the store was, after A. D. 1790, conveyed by Carpenter to one Rogers, with an exception of “ the right to remove the store reserved to Williams and that, after the commencement of this action, Rogers executed a deed of the land beneath the store to the demandant.

The tenant offered no testimony, except that he was in possession as a lessee for years; which being rejected, he opposed a recovery by the demandant on three grounds.

1st. The want of evidence, that the tenant was in possession, claiming a freehold.

2d. That the premises, as described in the writ, must be considered personal property, and consequently could not be recovered in this form of action.

3d. That if the premises were considered real property in consequence of the deed from Rogers, that deed was inadmissible in evidence, it having been executed after the commencement of this action.

A verdict was taken for the demandant, subject to the above exceptions.

Sullivan and Joseph Bartlett, counsel for the demandant.

(1) 3 Mass, R, 313-13 Mass rep. 441.* Story's Plead. 355 note.

(2) i N H Raws 105,

Richardson, C. J. was absent during tile whole Spring circuit, 1819, through indisposition.

delivered the opinion of the court.

1. It is an elementary rule in pleading, that all is admitted, which is not denied. — Qui non negat, fatetur. Loft’s Maxims, 84.

The plea of nul disseisin, then, admits the tenant to be in possession of the premises, claiming a freehold; because such is virtually the allegation in the writ, and no part of the writ is denied by the plea, except the seizin of the demand-ant within twenty years. 4 Mass. Rep. 444.

If, in fact, at the commencement of the action, the tenant was not in possession, claiming any interest, he should have pleaded non tenure, or disclaimed: or, if in possession, claiming less than a freehold, he should have pleaded non tenure special. Booth, 28. — 1 Burr. 114, 118. — Bacon Jib. Plead. J. 9. And notwithstanding some decisions in Massachusetts,(l) we see nothing in our statute on disclaimer,(2) or in our,state society, which requires such a deviation from the common law, as to hold either of these pleas to be pleas in bar.

*112. The second objection to the verdict rests on the hypothesis, that nothing, which can be considered in the nature of real estate, is described in the writ.

But such an objection can properly be taken only by demurrer, or by a motion in arrest of judgment.

As the motion in arrest, however, can still be made, we would suggest for the consideration of counsel, that, in the following cases, writs of ejectment, though recited in the imperfect manner which characterises many ancient reports, seem to have described “ a house,” (Cr. Ja. 664); “ a chamber,” (3 Leon. 210); “a part of a house,” (Cro. El. 286); “ the vestry in D.” (3 Leon. 96); “ a warehouse,” (Cro., Ch. 555); “ a stable,” (1 Lev. SO); and even “ a shop,” (48 Ethr. 3d, pi. 4th,) — without any specific reference to the soil beneath. Vid. etiam. Strange, 695. — 4 Coke, 87. Though Co. Lilt. 566, “ a precipe lieth not de domo, but de messuagiod

3. The third objection is so far well founded, that the title of the demandant must be considered as it existed at the commencement of the action; and the principles, on which this rule rests, as well as the exceptions to it, need not here be repeated from numerous authorities. 1 Chit. Pl. 530.—3 D. & E. 186.—4 East, 502.—3 John. Cases, 145, 154.—15 Mass. Rep. 310. — 13 Mass. Rep. 472.—Parker vs. Colcord, Chesh. May, 1819, post.—Chipmards Rep. 13, Stedman vs. Putney.

How far a tenant can avail himself of such a title, or of an outstanding title, is a different question, and one which does not arise in this case. For at the commencement of the present action, without the deed from Rogers, the demandant possessed such an interest in the premises, as, in our opinion, would enable him to bring a writ of entry to gain possession of them. It is, not necessary to hold, that, by a liberal construction of the extent, the soil beneath the store passed at the same time with the store itself. It suffices, if the store alone passed, and can be considered the subject of a real action. The language of the extent, at least, attempts to convey the store; the debtor afterwards disclaimed any interest in it, and when conveying the soil to Rogers, reserved to the creditor a right to remove the store.

It has long been held in this state that houses and other permanent buildings so far partake of the 1 onlt_r. that they will pass by the extent of an execution by appraisal, and need not be sold at the post.

The general principle, that the owner of the soil owns all ad caelum, is not always to be construed in a literal sense.— Loose articles, resting on the soil and having no physical con* nection with it, are never his ex necessitate; and even fix* tures sometimes fail to become his in consequence oí their having been sold to other persons by former owners. It is not unusual, also, for the proprietor of the soil to convey its growing grass, corn or timber: and it is well settled, that the purchaser of such articles, until severed, can protect them by actions, which savor of the realty. 6 East 602, Crosby vs. Wadsworth.—4 Coke 62, Herlakendens case.—1 D. & E. 703.—11 East 362.—2 Taunt. 38.—2 Bos. et Pul. 452.-2 Maule & Selw. 205.

Thus, too, one person may own the lower apartments in a house; and another person, the chambers. “ We know,” says Ashurst J. “ that in London different persons have dif- “ ferent freeholds over the same spot.” 1 D. & E. 703, Doe vs. Burt. Vid. etiam. 4 Mass. Rep. 575, 576. And, for injuries to either, real actions can be sustained. 4 Cruise's Dig. 344.—8 Mass. Rep. 418.

So A. may have an interest in mines beneath the surface of the soil; while B. owns the surface and its crops; and the estate of both equally partakes of the realty. 1 W. Bl. 482, Harker vs. Birbeck.

At the same time, we are fully aware, that, as between landlord and tenant, or between administrators and heirs, machinery within buildings, and even buildings themselves, when erected for temporary purposes, may be deemed personal estate. Shep. T. 90.—Bull. N. P. 34.—Burr. 1824.— 3 Es. Ca. 11.—2 East 88.—1 Hen. Bl. 259, Lawton, Ex. vs. Salmon.—3 Atk. 13, Lawton vs. Lawton. But, as between other parties, the same-kind of property is frequently held to be real estate. It possesses all the incidents of real estate; and the better opinion unquestionably is, that, if erected even for permanent purposes, by a stranger, and with the consent of the owner of the soil, the stranger retains an interest in the buildings, which may be protected by á real action. 8 Mass. Rep. 411.—11 Mass. Rep. 347.—14 Mass. Rep. 268.—Just. Inst. b. 2, t. 1, s. 30.—14 John. Rep. 21.—3 ditto 468, 470.*

The present case is still stronger. The store was erected by the person himself who owned the soil; it was permanently annexed to the soil; it had never been severed or removed from it; and consequently, in our opinion, gave the purchaser of it all the rights and remedies, which a purchaser of chambers in a house, Or of trees and grass growing on land, would acquire for their protection. Cro. El. 421, Welder vs. Bridgewater.—Co. Litt. 4, 5, 53a.—3 East 38, Elves vs. Maa.—3 Bl. Com. 210.—2 Gallis. 144.—4 Mass. Rep. 266, Clapp vs. Draper.— 10 Mass. Rep. 325, Bates vs. Sparrel,— 4 D. & E. 567, 671.—2 D. & E. 451;—1 Chitt. Pl. 173.— Fitz. Nat. Br. id paged. †