The difference between the two opinions in this case appears to rest upon the determination of who has the right to take or keep physical possession of the property. Can the plaintiff insist that the sheriff seize the sprinkler system and remove it even if the defendant resists or is willing to pay the assessed value, or, on the other hand, does a choice exist in the defendant to let the property go, or keep it and pay the assessed value? If the latter alternative is the law, then the injustice of Judge LEHMAN'S result readily appears. Fixing the value of the system as removed reduces it to junk or to little value. Should the defendant be given the privilege to pay this small amount or detached value and keep the property as installed? He would thus profit by his own wrong, reaping the benefit of the labor entering into installation when only paying for the material.
However, on the other hand, if this action of replevin be solely a possessory action then the election of what to do rests with the plaintiff, not the defendant. The plaintiff can insist upon taking the property over all obstructions and objections raised by the defendant and may refuse the offer of the defendant to pay the assessed value. If he wants his property he can have it. The law then would fix the value as a chattel severed from the realty. In other words, the value which a judgment fixes is to be recovered or resorted to as a substitute for the property only when the property cannot be given to the plaintiff; it is not a substitute for the property merely *Page 96 because the defendant will not give it up. If this were not the meaning of sections 1124 and 1126 of the Civil Practice Act every action in replevin might take the form and become an action for conversion without the benefit of the rule of damage applicable to conversion.
There must be a remedy at law for the recovery of the actual possession of property when the owner desires it; forced sales cannot be accomplished through wrongful possession culminating in conversion. Let me illustrate. I may have a famous painting which has a commercial value, but which to me is worth much more than the money because of association and family connections. Having loaned this to another, as for instance, an art exhibitor, he refuses to return it. Can he keep it by electing to pay the commercial value as fixed by the judgment of the court in the action of replevin, under section 1124 of the Civil Practice Act? Certainly not. I may insist upon getting my picture back and demand that the sheriff seize it if it be in existence and capable of being repossessed. Nothing but destruction or lack of jurisdiction would amount to an obstacle to the sheriff's authority.
These questions seldom have arisen and, I take it, seldom will arise, as in most of the cases of replevin the value, when fixed, is a sum which the plaintiff is willing to accept if the defendant desires to keep the property. Such no doubt is the result in all the conditional bill of sale cases and matters of commercial transaction or bargain and sale. However, then the acceptance of the money in place of the property is by agreement or the consent of the parties and not by the judgment of the court in replevin.
For these reasons I concur in the result reached in Judge LEHMAN'S opinion. The plaintiff is entitled to get his sprinkler system. He has been given the right to possess it and the value therefor is fixed as a chattel severed from the realty which will be given to him when *Page 97 he cannot obtain possession or retake it. The defendant has no election to keep the property and pay its value. If he could do this he then should pay the value of the property as a fixture or one installed upon the property, in other words, the cost of installing it.