Hinkley and Egery Iron Company v. Black.

to real estate by one in possession thereof under a contract for its purchase without paying rent therefor, is to be determined by the rule prevailing between grantor and grantee, mortgagor and mortgagee, and not that between landlord and tenant. Fixtures erected under such circumstances may, as against the vendor of the land, neither be removed by the vendee, mortgaged nor sold by him, nor seized and sold on fi. fa. against him as his personal property.

66

According to the better opinion, also, it seems that the rule is the same where possession is taken, and the annexations made under a parol agreement for the purchase of the land, though there is some conflict of authority on the question." Ewell on Fix. 273.

In one of the later notes in Kent (*343) precisely the same rule is given.

These citations undoubtedly state the result of the authorities on this point. The clear weight of authority is in their support. That this rule holds in Massachusetts is conceded in argument. Eastman v. Foster, 8 Metc. 19, 26; McLaughlin v. Nash, 14 Allen, 138; Oakman v. Ins. Co., 98 Mass. 57, and cases cited; Poor v. Oakman, 104 Mass. 309, 318; Madigan v. McCarthy, 108 Mass. 376; s. c., 11 Am. Rep. 371.

The rule declared in these cases is that if one erects a permanent building, like a dwelling-house, on the land of another, voluntarily and without any contract, express or implied, with the land owner, that the building shall not become part of the realty but shall remain personal property, it becomes a part of the realty and belongs to the owner of the soil.

In Ritchnyer v. Morss, 3 Keyes, 350, it was heid that, except in cases where the relation of landlord and tenant exists, one claiming the building as personal property must prove that it was erected. upon an agreement between the builder and the owner of the fee of the land that it was to be considered siri tiy a personal chattel; which is in effect the Massachusetts rule. Se, niso, Smith v. Benson, 1 Hill, 176. The same point was expressly decided in Ogden v. Stock, 34 Ill. 526, and the court says, "if the party making the improvement, as between himself and the owner of the soil, has no right to erect the same as property separato and distinct from the freehold, an intention so to do, no matter how clearly manifested, is of no avail."

Hinkley and Egery Iron Company v. Black.

The cases of Perkins v. Swank, 43 Miss. 349, and Leland v. Gassett, 17 Vt. 403, are to the same effect, and Christian v. Dripps. 28 Penn. St. 271, indicates that the same would be held in that State.

It is to be observed that the rule laid down, so far as applicable to this case, is in terms extended only to cases in which the conveyance fails because the obligee does not meet the conditions which were to entitle him to the deed; not to a case in which the obligor on his part refuses to perform the contract. And it was held in Yates v. Mullen, 24 Ind. 278, that "where A. by permission of B. built a mill on B.'s land under an agreement to purchase the land as soon as B. should have paid an outstanding judgment which formed a lien upon it and in the meantime to own the mill, and B. having failed to satisfy the judgment the land was sold * the mill remained A.'s personal property and did not pass with the estate."

*

If the rule is limited to the case of contracts for the conveyance of land, where the failure to perform is on the part of the proposed purchaser, we think it is not in conflict with any decision in this State.

Thus in the case of Rines v. Bachelder, 62 Me. 95, cited by the plaintiffs, it appears that the fault was not on the part of the purchaser, but on the part of the vendors, who were unable to give a valid conveyance of the lands; whereupon the purchaser was allowed a reasonable time to remove the buildings as his own personal property.

The cases of Osgood v. Howard, 6 Me. 452, and Fuller v. Taber, 39 id. 519, fall substantially within the rule. We think the consent of the land-owner, as intended in these cases, includes not only his consent that the building should be erected on his land, but also that it should remain the personal property of the builder.

Nor can the cases of Russell v. Richards, 10 Me. 429, and 11 id. 371, and Pullen v. Bell, 40 id. 314, be accepted as settling the law in this State that erections, made under a parol contract for the purchase of lands under such circumstances remain the personal estate of the builder. In the former case it was on the ground, first, that the mill was built on the land of the father with his permission, at the expense and as the property of the son, with an open and express disavowal by the father of any interest

Hinkley and Egery Iron Company v. Black.

in or claim upon it, and secondly, that it was a building erected for purposes of trade and manufacture, that the court held the mill to be the personal property of the son and those claiming under him. The decision of Pullen v. Bell simply follows that of Russell v. Richards, and would seem to be justified on the ground that the dwelling-house was not so attached to the realty as to become a part of it.

We think the opinions of the court in these two cases, properly considered, do not conflict with the rule we have drawn from the authorities. The essential distinction in this respect is not between a written and a verbal contract, but between the class of cases in which the failure to convey results from the fault of the vendor and those in which the purchaser fails to meet the conditions which entitle him to the deed. The right of the latter is merely to perfect his title by performing his contract.

In a later case than those to which we have last alluded the learned chief justice delivering the opinion of the court treats it as well-settled law that such erections made by one occupying land under a bond for a deed are to be regarded as real estate, and are not removable by the occupant as personal property. Hemenway v. Cutter, 51 Me. 408. And in regard to verbal contracts for the sale of lands the same result has been distinctly reached in the recent case of Lapham v. Norton.

Nor do we perceive that it can make any difference that the erections were by the firm, while the contract was only with two of the members who constituted the firm. The contract was made, or at least held, in the interest and for the benefit of the firm. They made the payments upon it. When title was obtained it was to be for the benefit of the firm. If a conveyance had been made to the two it would have been in trust for the partnership, and would have inured to their advantage. The firm, by arrangement with the obligees, undertook the performance of their contract, expecting to have their rights. We do not see that they could have expected or are entitled to more.

Judgment for defendant.

BARROWS, DANFORTH, VIRGIN and LIBBEY, JJ., concurred. APPLETON, C. J., and PETERS, J., did not sit.

A subscribing witness to a will, being the son of the testator and receiving but one dollar under the provisions of the will, that being much less than his interest as heir-at-law, is a competent witness to prove the will.

A

PPEAL from probate of a will. The opinion states the facts.

A. P. Gould, for appellant.

D. N. Mortland, for appellee.

APPLETON, C. J. This is an appeal from a decree of the judge of probate disallowing the will of Archelaus Smalley.

Bart K. Smalley, a son of the testator and a legatee under the will to the amount of one dollar, was an attesting witness to the same. It is conceded that had there been no will his interest as heir-at-law would have been greater than that under the provisions of the will.

The will is contested on the ground that he was not a competent attesting witness.

The statute relating to the attestation of wills has undergone various verbal changes in the different revisions of the statutes.

By the statute of 1821, chap. 38, § 2, a will to be valid must "be attested and subscribed in the presence of the testator by three credible witnesses."

In the revision of 1857, chap. 74, § 1, a will to be valid must be subscribed "by three disinterested and credible attesting witnesses."

In 1859, by chap. 120, section first of chap. 74 was amended by striking out the words "disinterested and" and adding thereto "not beneficially interested under the provisions of the will."

In the revision of 1871, chap. 74, § 1, the words "the provisions. of" were stricken out so that now a will is required to be witnessed "by three credible attesting witnesses not beneficially interested under said will."

VOL. XXXV-45

Smalley v. Smalley.

By a series of decisions in England and in this country it has been determined that the word "credible " was used as the equivalent of "competent" so that the question in such case is whether the attesting witness was a competent witness. Warren v. Baxter, 48 Me. 193; Hawes v. Humphrey, 9 Pick. 361; 20 Am. Dec. 481; Haven v. Howard, 23 d. 10; Carlton v. Carlton, 40 N. H. 14. Now in this case Bart K. will but rather to defeat it.

Smalley is not interested to sustain the
When a witness is produced to testify

against his interest, the rule that interest disqualifies does not apply. 1 Greenl. Ev., § 410. A legatee, one of several heirs-atlaw of a testator, the validity of whose will is in question, may be called as a witness in support of a will when his interest is manifestly adverse to that of the party calling him. Clark v.. Vorce, 19 Wend. 232. So, in Sparhawk v. Sparhawk, 10 Allen, 155, an heirat-law, who is disinherited by the will is a competent witness in its support. It is against his interest to support the will and whether entirely or partially disinherited, the same rule must apply so long as it is his interest to defeat the will.

So if it stand indifferent to the witnesses, whether the will, under which they are legatees, and to which they are witnesses, be valid or not, the witnesses, though legatees, are "credible." 10 Bac. Abr. 525 of Wills D. When an attesting witness would take the same interest under a former will to which he was not a witness, as under a later will, he stands indifferent in point of interest and is a good witness to prove the latter will. 3 Stark. Ev. 1692.

It is apparent that Bart K. Smalley, before any change of the statute of 1821, was a credible, that is a competent witness, because his interest would be adverse to the will.

When the word "disinterested". was inserted in the statute, as opposed to interested, the result perhaps might be to exclude an attesting witness whose interest it was to defeat the will.

But whether so or not, when that word was stricken out, and the attesting witness was required to be one not beneficially interested under the will, the obvious intention was to exclude those, who were to receive a benefit under the will, not those, who were pecuniarily losers by its provisions. "The reason why a legatee is not a witness for a will being because he is presumed to be partial in swearing for his own interest; " that reason ceases to exist when his interest is dissevered by such will. Oxenden v. Penrise, 2 Salk,

691.