Doe on the demise Stancel v. Calvert, 60 N.C. 104, 1 Win. 104 (1863)

June 1863 · Supreme Court of North Carolina

60 N.C. 104, 1 Win. 104

Doe on the demise SAMUEL T. STANCEL v. SAMUEL CALVERT.

'"vVhore A agreed to let B put a saw-mill and bonces and fixtures on his land for the purpose of carrying on the business of sawing lumber as long as B wished, it was held that B had a life interest ic the land necessary to the business, determinable sooner at B’s option, and that this interest and the mills, &c., erected according tot ho privilege, were not liable to bo sold by á constable by a virtue of an execution under a justice’s judgment without an order from Court. Held also, that ejectment would lie to recover such an interest.

Action of hjkcTMKNt, tried before Heath, J., at the Eall Term, 1802, of Northampton Superior Court.

The .action was brought to recover a “saw-mill and fixtures situate on the land of John ~W Stephenson,” and of which the defendant had possession. Both parties claimed under one George R. Jordan, who held the property, in dispute, under the following sealed instrument, entered into by said Jordan and Stephenson::

“ Know all men by those presents, that we, George R. Jordan and John W. Stephenson, have this day entered into the following agreement, vix: That the said George R. Jordan wishes to put np-GE the lands of the said John W. Stephenson a saw-mill with -all the necessary fixtures, and agrees to let the said John W. Stephenson have all the manure that is raised by the stock on and around tire said mill, in compensation for the use of the privilege of putting the mill and necessary fixtures thereon.

The said John W Stephenson agrees on his part to let the said George E. Jordan have the privilege to use and enjoy the said land around the said mill as long as the said Jordan wishes to use the same for the purpose of carrying on the business of sawing timber at said mill. And when the said Jordan Avishes to discontinue the business or wishes to remove the said mill, he shall have the right to remove the mill and all the fixtures, houses and every, thing else, he, the said Jordan, may have put thereon.” The .plaintiff’ claimed under a judgment and execution issued from the county court, and a sale and’deed therefor from the sheriff, who sold'under the execution, the defendant • claiming under a magistrate’s judgment — execution—levy and sale by a constable, the levy not havingbeenroturned to court. The plaintiff’s.execution was first levied, but the sheriff did not remain in possession of the premises. The defendant’s execution was then levied on the promises, and the officer remained in possession and advertised and sold, and the defendant purchased and took a deed therefor from the officer. The plaintiff then procured the sheriff to sell under his levy, when he purchased and took a deed from the sheriff. Jordan was living at the time of the trial. The foregoing facts were submitted to his Honor, with the understanding that he was to enter a judgment for the plaintiff or for the defendant, as the law might be for the one or the other.

His Honor, oaa consideration, gave judgment for the plaintiff, from which the defendant appealed.

ISarnes, for the plaintiff.

No counsel for the defendant.

Eatxlu, J.

"We concur in the opinion expressed by his Honor in the Court below, upon the facts agreed. The contract executed under the hands and seals of Jordan and Stephenson, had the effect to make the former the owner of the houses, machinery and other fixtures of the mill erected by him on the land of the latter, and also to give him an ease* merit in the said land immediately around the mill, so far as the same was necessary, for the business of sawing lumber. The quantity of estate or interest, which Jordan thus acquired in the mill and land, was, certainly not a mere estate at will, because Stephenson had no right to put an end to it at pleasure, nor was it a lease for years for the want of certain ty, Or of any thing that could be reduced to a certainty in the time. It was, therefore, an estate for at least the life of Jordan, with a condition annexed, to be void as to the land, upon his abandoning the milling business and taking off the houses and fixtures, as by the contract, he was authorised to do. Such an interest could not be sold under an execution from a justice, without a return of the levy by the constable to Court, an order of sale therein made, and a sale 'by the sheriff under such order ; see Revised Code, chap. 62, secs.. 16 and 1J. It follows that the levy and sale by the constable was void.

There can be no doubt of the propriety of the remedy by ejectment. It is settled that even the upper chambers of a house may be held separately from the soil on which it stands, and that an action of ejectment will lie to recover it; 4 Kent’s Com. 401, Note e,; Gilliam v. Bird, 8 Ired. 280.

Pee, CuexaM, Judgment affirmed.