This is a proceeding for the trial of the rights of property under our statute. The subject of the controversy is an engine and gin machinery which formerly belonged to J.S. Jones. Plaintiff in error Bull claims under an attachment and sale of the machinery as personal property. Appellee claims under a foreclosure and sale of the land upon which the machinery was situated, as real estate.
Upon a former appeal of the case, reported in 85 Tex. 136, under the style of Jones v. Bull, the machinery was held to be real estate, and the superior title to be in Jones, and the cause was reversed and remanded for a new trial.
Upon the second trial, judgment was rendered in favor of Jones, against Bull and the securities on his claim bond, for the value of the property and the 10 per cent statutory damages. The record shows that this judgment (which is the one now in question) was based upon the ground that the machinery in question was real estate, and that *Page 347 therefore no title passed to Bull under his sale thereof as personal property.
We are of opinion, that our statute which authorizes the giving of a bond for the trial of the right to personal property does not authorize the summary judgment provided for therein where the property claimed is in fact real estate.
In Jacobs, Bernheim Co. v. Shannon, 1 Texas Civil Appeals, 399, we said: "We think the court erred in this charge in telling the jury that the plaintiffs in the suit for the trial of the right of property had the right to take judgment against the security on the claimant's bond, if there was only one. Plaintiffs could take this summary judgment only upon a statutory bond, but if a recovery should be sought upon such bond as a common law obligation, suit would have to be brought thereon in the regular way;" viting Bank v. Lester, 73 Tex. 542, and Jacobs v. Daugherty, 78 Tex. 682.
It seems well settled that the common law action of replevin will not lie to recover property affixed to the freehold, and made part thereof. 20 Am. and Eng. Encyc. of Law, 1061.
As to whether or not defendant in error could recover in a proper proceeding upon the bond executed by plaintiffs in error as a common law obligation, we need not decide, as the question is not here presented; but will call attention to the cases in 73 and 78 Texas, above cited, as having some bearing thereon.
The judgment of the court below will be reversed and the cause remanded.
Reversed and remanded.