Opinion
(June Term, 1863.)
Where A. agreed to let B. put a sawmill and houses 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 in the land necessary to the business, determined sooner at B.'s option, and that this interest and the mills, etc., erected according to the privilege, were not liable to be sold by a constable by 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.
EJECTMENT, tried before Heath, J., at Fall Term, 1862, of NORTHAMPTON.
The action was brought to recover a "sawmill 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 these presents, that we, George R. Jordan and John W. Stephenson, have this day entered into the following agreement, viz.: That the said George R. Jordan wishes to put up on the lands of the said John W. Stephenson a sawmill 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 the said mill, in compensation for the use of the privilege of putting the mill and necessary fixtures thereon.
(105) "The said John W. Stephenson agrees on his part to let the said George R. 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 wishes 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 everything 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 having been returned to court. The plaintiff's execution was first levied, but the sheriff did not remain in possession of the premises. The defendants's execution was then levied on the premises, 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, on consideration, gave judgment for the plaintiff, from which the defendant appealed.
Barnes for plaintiff.
No counsel for defendant.
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 easement in the said land immediately around the mill, (106) 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 no 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 certainty or of anything 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 authorized 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. See Rev. Code, ch. 62, secs. 16 and 17. It follows that the levy and sale by the constable were 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 Com., 401, Note e; Gilliam v. Bird, 30 N.C. 280.
PER CURIAM. Affirmed.
Cited: S. c., 63 N.C. 617.