#### Samuel Pemberton v. Roswell King,

From Montgomery.

Erections made by a lessee for years, for the better enjoyment of his term, become part of the realty. But if made for the exercise of a trade, or for the mixed purposes of trade and agriculture, they belong to the tenant, and may be removed by him during the term, or after its expiration. If thés removal is made after the expiration of the term, the tenant is, in respect to his entry only, a tres. . passer. 1

Between the tenant and his creditors, a fixture which cannot be moved without injury to the premises, is until severed, a part of the realty — Therefore, a sale of it by a Constable is a nullity, and a levy by a Sheriff is not such a severance as will give him a special property in it.

Detinue for a steam-engine. Plea Non detinet.

On the trial before Norwood, Judge, a verdict was returned for the Plaintiff, subject to the opinion of the Court upon the following facts •;

*377The Plaintiff claimed title to the engine, under a levy made by him as Sheriff of Montgomery, upon a fi.fa. against one Bosxvorth. The Defendant claimed under a sale made by a Constable upon an execution against the same person.

June, 1830.

At the time of the Plaintiff’s levy and the sale to the Defendant, the engine was standing upon land which Bosworth held for a term of years. The engine was then prepared for operation — the boilers were placed in a pit and nearly covered with masonry — and the whole mill was under cover of a house, which it would be necessary to jmll down in order to remove the machinery.

Judgment was entered up for the Plaintiff, and the Defendant appealed.

Nash, for the Defendant,

cited PooVs case (1 Salk. 867) Fiteherbert v. Shaw, (1II. Blackstone 259) Elwes v. Maw (3 East 53) Lawton v. Lawton (3 Mh. 13).

Gaston, contra,

referred to J.hnbler 113, Bull. ¿V. P. 34. Bean v. JHlalley, (3 Esp. R. 11) Penton v. Hobart (2 East 88) Holmes v. Tremper ( 20 Johns. Rep. 29).

Ruffin, Judge.

The principal question made at the bar cannot be decided on the case in this record $ for it docs not appear, whether Bosxvorth or his landlord erected the engine, nor the purpose for which it was erected.— The old law was more strict in regard to things becoming part of the freehold by being affixed to it, than it is in modern times. Since trade and the mechanic arts have become such important pursuits, there Isas been a relaxation in their favor. It is unnecessary to consider the question between the executor and heir, or that between the owner of a particular estate and remainder man, because that between the landlord and tenant stands upon its own grounds. The general rule is, that any erection, even by the tenant, for the better enjoyment of the land, becomes part of the land $ but if it be purely for the exercise of a trade, or for the mixed purpose of trade and *378agriculture, it belongs to the tenant, and may be severed during the term, or after its expiration ; though in the latter case, the tenant will be guilty of a trespass in entering the laud for that purpose, and in that, respect only. We should therefore be obliged to grant a new trial at all events, because it does not appear here, when, by whom, nor for what, Ibis engine was set up, nor whether Boswortli’s lease had expired or not.

There, can be no doubt howe\er, that as between the tenant and his creditors, an engine of this sort, actually fixed to and in the soil, and which cannot be removed without tearing down the mason’s work and house which covers it, is, until severance, a part of the realty. There is no necessity for drawing nice distinctions between the two kinds of property here. If the creditor could not reach it as realty, the Court would go far in his favor in holding it to be of that species, which would render it liable to sale. But it is equally liable to execution, as the one or the other. But until it is parted from the soil, such fixture loses its distinctive, character of personalty. For this reason, the sale by the Constable is absolutely void $ for he can in no case, sell land. For the same reason, the seizure by the Sheriff is ineffectual to the end of vesting the property in him, as a personal chattel.' Although the Sheriff can sell the land, yet im must sell it as land. Ha cannot sell a house that stands on it, as a matter distinct from the soil, and to be removed by the purchaser. He must sell the property in the state, and as the kind if is at the time of the sale. The single act of levying an execution, does not chango the nature of the property. And although the tenant might have a rigid to sever the fixture from the freehold, until that right be exercised by him or the officer, the thing Is mes ged in the soil. Even the tenant, himself, before severance, could not bring detinue Although the law may confer upon him the power to re-convert the engine into p. personal chattel, until that power be exercised, it is *379not re-converted. Whether the Sheriff may not do it in his stead, it is unnecessary to say. He has not done it: and therefore, this action of detinue will not He.

Per Curiam. — Let the judgment of the Court below be reversed.