Kile v. Giebner , 114 Pa. 381 ( 1886 )

Mr. Justice Clark

delivered the opinion of the court,

This action of trespass was brought by Dr. E. X. Geibner against William Kile, sheriff of Mercer county, to recover .damages for seizing and selling, on 4th March, 1882, a certain saw mill, with engine, boiler, etc., upon a writ of fieri facias against one W. E. McDonald. The saw mill was situate upon certain leasehold property owned by McDonald ; it was a stationary steam saw mill, permanently attached to the leasehold in the usual manner, and was in the use and occupancy of McDonald, in connection with the leasehold, in the manufacture of lumber, at the time of the levy. Dr. Giebner claims to have purchased the saw mill from McDonald in the month of September preceding the sale, and that the sheriff committed a trespass in afterwards levying upon and selling the same as the property of McDonald.

The sheriff’s levy was upon “all the right, title, etc., of the defendants, of, in and to their leasehold interest in two lots of ground in Sandy Lake borough, Mercer county, Pennsylvania, bounded north by Walnut street, east by Brown & Foster, south by same, and west by same; size, 60 ft. by 120 ft.; on which is erected a stationary steam saw mill, with engine and boiler, saw and log carriage, and lumber car, and all other fixtures about same, in good running order.” The sale, according to the sheriff’s return, was of “the leasehold interest in the piece of land in said borough, levied upon by virtue of this writ, with the improvements.”

It is well settled that a lease of lands for a term of years may be sold on a fieri facias, as personal and not real property: Dalzell v. Lynch, 4 W. & S., 256 ; Sower v. Vie, 2 Harris, 99; Williams v. Downing, 6 Harris, 60; Sterling v. Commonwealth, 2 Grant, 162. It is equally well settled that fixtures erected by the tenant on the demised premises, for the purpose of .carrying on his trade, being accessory to the enjoyment of the term, are also personal property during .the continuance of the term: Lemar v. Miles, 4 Watts, 330; Church v. Griffith, 9 Barr, 118; White’s Appeal, 10 Barr, 252.

The “ stationary steam saw mill, with engine, boiler,” etc., although permanently attached to the land must, therefore, be treated as personal property; but these articles were levied upon as part and parcel of the leasehold, — the whole taken together as a chattel real. The levy was upon the defendant’s right, title, etc., in the leasehold, “ upon which is erected a stationary steam saw mill,” etc.; and the sale was of “ the leasehold interest,” etc., “ with the improvements.” The whole property constituted one establishment for the manufacture of lumber, and it was levied upon and sold as such.

The case is in this respect similar to the Titusville Novelty Company’s Appeal, 27 P. F. S., 103, where the levy was upon “ all the right, title,” &c., “ of the defendants, of, in and to a certain leasehold estate situate ” &c., “ together with the oil wells, engines, boilers, engine houses, derricks” &c., &c., “and all the machinery and fixtures belonging to said well and lease.” The levy was not made by actual seizure, or in view of the property, but in the manner and form of levying upon real estate; this court was of opinion, however, that the leasehold was such property as was not susceptible of seizure by the sheriff; that the officer could have no manual caption thereof, so as to take it into his personal custod3, and hence be was no añore responsible for it than for any other interest in real estate. It was thereupon held, that the levy was good, and that the writ was entitled to the money in preference to a later wi'it, upon which the levy was made on the leasehold, the derricks, the engine, &c., &c., separate^ and in view-thereof, as upon purely personal chattels.

The doctrine of that case is applicable here. The sheriff sold all the right, title, interest, &c., of the defendants in the leasehold, describing it by the adjoiners, of which the fixtures, machinery, &c., were essential^- a part. The property sold was an interest, a chattel interest it is true, but nevertheless an interest in realty, that was not susceptible of actual seizure ; and. the saw mill, engine, &c., were not severed in the levy and sale, but were sold as appurtenant thereto. Whether or not the sheriff might, in the levy and sale, have effected such a severance is a question not raised upon this record, and need not be decided; the fact is that he did not, and he cannot be held on trespass as upon a seizure and sale of personal goods.

The judgment is reversed.