The fence in question stood on the land which the defendant conveyed to the plaintiff; and, as between vendor and vendee, was a part of the thing granted. (Goodrich v. Jones, 2 Hill, 142; Thayer v. Wright, 4 Denio, 180; Green v.Armstrong, 1 id. 554.) There is no more doubt of this, than there is that the trees, herbage and buildings on the land, or the mines and quarries in it, passed by the deed.
It is undoubtedly true that the soil may be owned by one man, and the fences and buildings by another; and as between such owners, those structures will be regarded as personal property. But in their nature, fences and buildings, like every thing else attached to the earth, are real estate, and will pass with the soil to the heir or grantee. It is truly said that rails are not in their nature real property. But a fence, though constructed of rails, is in its nature real property. It is just as plainly so as is a house. Both are made of materials which were once personal property; but they become real when formed into a structure attached to the soil. The word land includes not only the soil, but every thing attached to it, *Page 573 whether attached by the course of nature, as trees, herbage and water, or by the hand of man, as buildings and fences. This is but common learning; and there is no more room for question that a grant of land, eo nomine, will carry buildings and fences, than there is that it will carry growing trees and herbage upon, or mines and quarries in the ground. This is probably the first time the suggestion was ever made, that the purchaser of a farm must have the fences mentioned in the deed, either for the purpose of acquiring a title to them, or having that title secured by the covenants in the conveyance.
The fact that buildings and fences may be owned by a different person from the one who owns the soil, has no tendency to show how much the defendant attempted to convey. That must be settled by the deed; and the deed just as plainly goes to the structures attached to the land, as it does to trees, mines and quarries.
It is said that the fence was not included in the grant, because the defendant did not own it. That argument proves too much. It proves that nothing was granted, if the defendant owned nothing which he professed to convey. And it turns the covenant of seizin into nonsense; for it will have no operation, except where it is of no use, to wit, where the grantor owned the thing granted.
It is true that ejectment cannot be brought for a fence after it has been severed from the freehold, and become personal property. And it is no less true that ejectment cannot be brought for trees, buildings or ores under the like circumstances. But the argument does not prove but that all these things are real property before the severance takes place.
The covenant of seizin, when in the usual form, goes to the title; and is broken the moment it is made, if the vendor had not the lawful title to the property granted, and to every part of it. In this case the defendant covenanted, that he was "the lawful owner of the premises above granted, and seized of a good and indefeasible estate of inheritance therein." The covenant extended to the whole of "the premises;" and included the fences, as well as the trees, buildings, mines, quarries, and *Page 574 other things which were granted by the deed. As to the fence, and the rails of which it was composed, the defendant had no title; he was not the owner; the property belonged to Brown. The covenant was as plainly broken, as it would have been had Brown owned the house and barn, or a coal mine or ore bed in the land. Notwithstanding the zeal with which the contrary doctrine was urged, no authority was produced in support of it. Cases were cited to show, that a mere lien or incumbrance, as a judgment or mortgage; or an easement, as a way over the land; none of which divest the title; do not constitute a breach of the covenant of seizin. (Sedgwick v. Hollenback, 7 John. 376; Whitbeck v.Cook, 15 id. 483.) Such cases are very far from proving, that the covenant is not broken where a part of the thing granted was not owned by the covenantor, but was owned by another.
It was a matter of no importance how Brown acquired title to the rails. It was enough that he owned them.
That parol evidence was inadmissible to control the legal effect and operation of the deed, is too plain a proposition to be disputed. If the plaintiff had been told at the time that Brown owned the rails; and more, if the rails had been expressly excepted by parol from the operation of the grant and covenant, it would have been no answer to the action. (Townsend v.Weld, 8 Mass. R. 146; Noble v. Bosworth, 19 Pick. 314;Suydam v. Jones, 10 Wend. 180; Champion v. White, 5Cowen, 509; Jackson v. Russell, 12 John. 427.) A deed cannot be contradicted in its legal effect, any more than it can in its terms.
I am of opinion that the judgment is right, and should be affirmed.