Dawson v. Daniel.

sale, because of the statute of frauds, and without it the sale was void. Everywhere it was held that the purchaser must bring his ejectment to obtain possession. It was so under the statute of elegit, which commanded the sheriff to deliver all the goods and chattels and one-half the lands to the plaintiff. And it was so under the levari facias. Under the elegit, the plaintiff could treat the leasehold either as chattels, and take the whole at a price, or as lands, and take one-half by extent. The sheriff could enter, if he found the gates and door open, to hold his inquisition, but for no other purpose. If he delivered the term as chattels, or extended one-half as lands, all the tenant, by elegit, could do was to bring ejectment. So, under the fieri facias, all the sheriff did was to sell and assign the term, and the purchaser was put to his ejectment to obtain possession. There was one exception only to this, and that was, if the execution debtor consented to surrender possession the sheriff might put his purchaser and assignee in possession under the fi. fa.; but he could not do this by force. If he happened to find the tenant absent he could not seize the possession against his will, for that would be taking forcible possession, which was not allowed. Perhaps the purchaser, if he could get possession, might, relying on his title, retain it under such circumstances, but this principle would not authorize the sheriff to eject the debtor. Watson, Sheriff, 178, 188, 206, 212, (5 Law Library, 128, seq.;) Sewell, Sheriff, 226, (36 Law Library, 175;) 2 Saund. 68, 70; 3 Bac. Ab. tit. "Execution," c. 4, p. 699, (Bouvier's Ed. A. D. 1860;) Id. c. 2, p. 688; 5 Id. tit. "Leases," p. 433; Taylor's Landlord and Tenant, § 435; The King v. Dean, 2 Show. 88; Taylor v. Cole, 3 T. R. 292; James v. Brawn, 5 B. & Ald. 243, (7 E. C. L. 83;) Hughes v. Jones, 9 Mees & Wels. 372; Playfair v. Musgrove, 14 Mees & Wels, 239; Rogers v. Pitcher, 6 Taunt. 207; and, see Porter v. Cocke, Peck R. 34, (Tenn.)

I am of opinion, therefore, that, in making a levy on a leasehold, even where it is taken as a chattel interest in real estate, the sheriff cannot oust the tenant in possession or the execution debtor without his consent, and that he cannot, in the nature of the thing, be required to exercise any dominion or control over it, founded on any idea of a right to the possession. He should, no doubt, proclaim his levy to those in charge, and notify the tenants of it; but, strictly speaking, I do not find that even that is necessary to maintain his levy. That which the marshal did in this case was abundantly sufficient. He had no right to put a watchman on the prem ses, nor to remain on them himself without the consent of Daniel; and, his presence not being necessary to symbolize his title under the levy, his withdrawal was no abandonment; neither was he required to watch and warn off trespassers, whether they came as officers with writs or otherwise.

In Very v. Watkins, 23 How. 469, 474, it was said, even of a box of jewelry, that if the officer had a view of it, and it was in his power, he

Dawson v. Daniel.

need not take actual possession, but may declare his levy without actual seizure. If any one disputes his title he may retake the property whereever he finds it. Parrish v. Danford, 1 Bond, 345. On the theory, then, that the marshal was required to levy on the leasehold as goods or chattels, his levy was complete and his title good, and he could at any time have made an actual seizure, if it became necessary. It was in his constructive possession, and that was enough. The sheriff, on that theory, was a trespasser. Owing to comity between the courts the marshal would, perhaps, not be able to turn him out without an application to the State Court itself, but the sheriff's wrongful possession did not displace the marshal's levy. His levy was notorious and sufficient, and the nature of the property was such that he could not and need not take any kind of actual possession. Neither the withdrawal of the watchman nor the entry of the sheriff can, therefore, be treated as an abandonment by the marshal of his title. The fallacy of the plaintiff's position is in supposing that to make or hold a valid levy the marshal should place a watchman in charge, or do some such significant act to manifest and keep up a manifestation of his title; or that, having assumed to do this in the beginning of his levy, a subsequent neglect to do it is an abandonment. So far as his acts were excessive, he might release such excess without incurring any imputation of abandonment. He could not legally have forbidden the entry of the sheriff, because, as we have shown, he had no right to the possession of the leasehold lot, and an action of ejectment was necessary to recover that possession. The coerced return of the writ was no abandonment, and all along the marshal had all the dominion and control that he lawfully could have acquired by his levy in the first instance.

Does the case stand differently as to the machinery? If it be conceded that the machinery is to be treated as personal property, regardless of its annexation to the land, yet, owing to the fact that it was fixed to the soil, was ponderous, and incapable of manual delivery without a severance from the soil, the marshal did all he could do to make an effectual levy, and to keep it up, as I have already shown by the authorities last cited. See, also, Gladstone v. Padwick, L. R. 6 Exch. 203. It is undoubtedly true that the officer may remain on the premises where the goods he takes are situated long enough to remove them, but I think he was not required to tear down this machinery and remove it. Except for that purpose he had no right on the lot at all after he had declared his levy. He might well let it stand as he found it; until the sale, at least.

But I cannot assent to the theory that, with such machinery as this, an officer with an execution can sever it and sell it separate and apart from the leasehold. It might not pass under a levy on the leasehold alone, and as a part of it; but that is not the question. He levied on it by name as machinery, and likewise on the leasehold, and the real question is

Dawson v. Daniel.

whether he should have severed and sold; or, rather, that being his duty, whether his failure to do it was an abandonment. I am satisfied his duty was to levy, as he did, on both, and sell both together, in precisely the condition the lessee had placed it; otherwise, this valuable machinery, costing many thousands of dollars, would be unnecessarily impaired in value by severance, and so would the leasehold. The value of each is enhanced by keeping them together.

It is sometimes loosely said in the books that whatever the tenant can remove must be levied on and sold as personal property. This may be so as to mere utensils of trade, or trade "fixtures," which are portable, and not seriously injured or rendered useless by severance. But not so as to structures like this. No doubt the press is valuable when severed, and can be placed on other land, but the mere cost of taking down and putting up is so great, that its value standing and ready for work is far greater, and it cannot be that a debtor can be compelled to submit to a mode of levy and sale which so deteriorates his property. If so, it could be severed and sold on an execution for any small amount. Take the case of buildings built on leasehold land with a covenant for removal. Can it be said that they must be severed and sold by the sheriff, rather than sold all together? It does not follow because the leasehold, or the structures upon it, are personal property, and are sold as such, that they are to be treated as loose or portable chattels, or that the structures are to be severed to make them so. Both being chattels, they may, in a proper case, be sold as a whole; and, if the leasehold be real estate, in the hands of the lessee, the fixtures on it must be real estate, as between him and his creditors, just as they would be if his estate was freehold. Perhaps the true theory is that the fixtures, when of a character to be real estate, if the owner has a freehold in the land, are also real estate if he has only a leasehold with a right of removal, and that it is the right of entry, severance, and removal which is levied on and sold. But the purchaser, if the leasehold can also be sold, buying that, has the same right to let them remain as they were, until it suits his pleasure or interest to remove them, as the lessee or execution debtor had. And, in this view, it is immaterial whether they be real estate or chattels; and I think the sheriff, in a case like this, whether he sells as real property or chattels, should sell all together.

It is not necessary to extend this opinion by reviewing the cases here cited which have led me to this conclusion. Cases on the subject of fixtures are so numerous, differential, and conflicting that it is quite impossible to find authoritative precedents for any case. It has been frequently said that each must be governed by its own circumstances. The ruling I make here is only that, in a case like this, the machinery must be treated as a part of the leasehold, whether it be real estate or personal property; and that no other duty was required of the marshal in making

Dawson v. Daniel.

and keeping up his levy on the machinery than was required in making and keeping up his levy on the leasehold; and, therefore, the levy on the leasehold not having been abandoned, the levy on the machinery was not abandoned by the acts relied on to show such abandonment. Ewell, Fix. 353, 357; Tyler, Fix. 159, 164, 192, 240, 416, 626; Freeman, Ex. § 114; Watson Shff. 179; Van Ness v. Packard, 2 Pet. 137; Kutter v. Smith, 2 Wall. 491; Gue v. Tidewater Co., 24 How. 257; Eles v. Maw, 2 Smith, Leading Cases, (7th Ed.) 177, 212, 220, 222; Pemberton v. King, 2 Dev. Law, 376; Conkling v. Foster, 57 Ill. 104; Pillow v. Love, 5 Hayw. 109; De Graffenreid v. Scruggs, 4 Humph. 451; Childress v. Wright, 2 Cold. 350; McDavid v. Wood, 5 Heisk. 95; Cannon v. Hare, 1 Tenn. Ch. 22, 25; Boydell v. McMichael, 1 Cromp. Mees. & Ros. 177, note a, p. 180; Hallen v. Runder, Id. 266, 275; Stewart v. Lombe, 1 Brod. & Bing. 506; S. C. 5 E. C. L. 768; Barnard v. Leigh, 1 Stark. 27; S. C. 2 E. C. L. 217; Doty v. Gorham, 5 Pick. 487; Potter v. Cromwell, 40 N. Y. 287; Murdock v. Gifford, 18 N. Y. 28.

Moreover, I am of opinion that, in Tennessee, leasehold interests are now real estate so far as concerns judgments and executions, and that this judgment was a lien upon this property. The cases already decided in Tennessee settle this principle, though none of them are cases of execu tion levies. Section 51 of the Code says that the words "real estate," "real property,” and “land” include lands, tenements, and hereditaments, and all rights thereto and interests therein, equitable as well as legal. T and S. Code, § 51. We have seen that under the statute of elegit leaseholds were held to be included in the words "medietatem terræ suæ." Porter v. Cocke, Peck, R. 34; 1 Sug. Vend. 660; 2 Tidd, Pr. 1035, 1004; 5 Bac. Ab. title, "Cases," 433; Watson, Sheriff, 207. In Evans v. Roberts, 5 Barn & Cress, 828, (S. C. 11, E. C. L. 701,) it is said that in the English statute of frauds the words "lands, tenements, and hereditaments" were used to denote a fee-simple, and the words "any interest in or concerning them," to denote a chattel interest, or any interest less than fee-simple. These are almost the words of section 51 of the Tennessee Code.

It will be found, in examining the subject, that ever since lands in the colonies were subjected to execution there has been, particularly in the colonial and earlier State legislation, a disposition to assimilate leaseholds, at least for long terms, to real estate. The courts sometimes construed the words "real estate" and "lands" to include them, but generally it was held those words did not. Many of the States have, by statute, made them real estate, and there is nothing novel in so treating them. This section of the Code, in my opinion, was intended especially to make leaseholds subject to the incidents of real estate where the statute does not otherwise particularly direct. The case of The People v. Westervelt, 17 Wend. 674; S. C. 20 Wend. 416; and Putnam v. Westcott, 19 J. R. 73; and the cases cited in Freeman on Executi ns, § 119, and other text

Dawson v. Daniel.

writers, show the growth of legislation and judicial decision in this direction of making leaseholds real estate.

In Burr v. Graves, 11 Central Law Journal, 471, the Supreme Court of Tennessee held that a leasehold, with its machinery and fixtures for cleaning cotton, could be seized under attachment without going on the premises or taking possession of the property. It is true, the attachment was to enforce a statutory mechanic's lien, but the procedure would be the same, as I have endeavored to show, at common law, and without any lien. Indeed, our method of selling real estate under execution finds its archetype in the common law mode of selling a leasehold under the fieri facias, elegit, and levari facias. The case cites with approval Kelly v. Schultze, 12 Heisk. 218; Choate v. Tighe, 10 Heisk. 621; and Pemberton v. King, supra. Mr. Justice CooPER was one of the authors of the Code, and in delivering this opinion clearly points to the inevitable results that, as to judgments and executions, leaseholds are now real estate. But see Buhl v. Kenyon, 11 Mich. 249, where a contrary doctrine is asserted, under a similar statute, by a court entitled to the utmost respect.

In the view I have taken of this case it is unnecessary to ex mine the question so much argued, whether the adjudication of these questions in Dawson v. Daniel, supra, on the application for a vend. ex., is res adjudicata of the questions now made by this bill. I think it was not such an adjudication as precludes either Daniel or those claiming under him from resisting the title of the execution creditor in any appropriate way. The only question there was whether a vend. ex. should issue, and that proceedings could not be converted into a trial upon affidavits of the right of property. It was a bare motion, from which not even a writ of error could be sued. Boyle v. Zacharie, 6 Pet. 656.

Let decree be entered declaring that Dawson is entitled to the money, and, after paying the costs of the suits at law, including the marshal's commissions for sale, the balance may be paid to him. The costs of the original and supplemental bills having been already paid out of the fund, the costs incident to the cross-bills, and all costs since the agreed decree, will be paid by Freeman out of the fund in his hands as trustee. But all the parties may have a decree for their costs against Daniel. Decree accordingly.