The opinion of the court was delivered by
Williams, Ch. J.The question presented in this case is, whether the house and barn, for which the recovery was had in the county court, were personal property; for, unless they are to be so considered, the action of trover cannot be maintained. It is conceded, that the action cannot be maintained to recover the value of fixtures. Buildings, when erected for the use and convenience of *410the owner of the soil, become a part of, and annexed to, the realty, and pass by a deed from the owner of the soil, and descend to the heir as part of the inheritance. It will not be contended, that, by virtue of an execution, the sheriff can seize and sell as personal property the houses, barns, or other buildings, erected by, and in the occupancy of, the owner of the soil. In most of the cases, which have been read, it is recognised that a house with a chimney and cellar becomes a part of the realty, and is to be treated as a tenement, particularly when erected with a view to its being permanently occupied for that purpose. This was conceded in the pase of Van Ness v. Pacard, 2 Peters 137; and, indeed,, the case of Elwes v. Maw, 3 East 83, seems to settle this point beyond controversy. It is undoubtedly true, that buildings, erected for a tem.porary use, or barns, erected by persons other than the owner, and not intended for permanent fixtures, may in some cases be considered as personal property,, and treated as such.
Between vendor and vendee, heir and executor, mortgagor and mortgagee, all buildings, which enhance the value of the estate, and are designed to be occupied by the owner thereof, agreeable to the principles of the common law, become a part of the realty and pass with it by deed, or by descent. The decision of this court in the case of Preston v. Briggs, 16 Vt. 124, recognised and establised this principle in relation to a barn, erected by a mortgagor, remaining on the premises at the time of the foreclosure; and the same was recognised in Massachusetts in the case of Winslow v. Merchants Ins. Co., 4 Met. 306, and Butler, Adm’r, v. Page, 7 Metcalf 40.
In the case before us the buildings were erected with a view to their being permanent and remaining on the land, and being occupied by the plaintiffs intestate, as a part of the estate to be deeded to him’thereafter. The charge of the court supposes this to be the state of the facts. We are, therefore, all of us of opinion, that, by the rules of the common law, the house and barn, erected by the intestate under the circumstances detailed in the bill,of exceptions, became a part of the realty, and cannot be considered as personal estate, for which the defendant can be made accountable in an action of trover.
It is true that the rule of the common law has been relaxed in *411favor of tenants., in cases arising between landlord and tenant, and between tbe executor of the tenant for life and the remainder man, so far as to permit them to retain the property and remove buildings, erected for the .purpose of trade ; and perhaps in this country the observations of the court in the case of Van Ness v. Pacard, 2 Peters 146, would extend this exception to buildings erected for. agricultural purposes by the tenant. And in England, where the buildings were erected with a design to remove them, and where by custom the tenant usually removed such .buildings or had them valued to the incoming tenants, a tenant has been .permitted to maintain an action of trover against a party converting them; such was the case of Wansbrough et al. v. Watson, 4 Ad. and Ellis 384, (31 E. C. L. 217;). although this latter case seems to be somewhat at variance with the remarks of Ch. J. Gibbs in Lee v. Risdon, 2 E. C. L. 69, and which always appeared to me well founded; — yet these cases do not help the plaintiff. They are exceptions to -the general rule, and the plaintiff must bring his case within those exceptions, or he cannot prevail.
We are aware that there are some cases in Massachusetts and in Maine which would seem to countenance the views urged by the plaintiff. The case in the 4th Mass. 514, Wells et al. v. Banister and his trustee, does not appear to me to warrant the conclusions which have been drawn from it in the other cases. The remark that the house was “ the personal property of the son ” does not appear to me to be a legitimate conclusion from the facts disclosed in the case, but the reverse; and, although the decision was sound and correct, yet the inference, which was drawn from it in subsequent cases, does not appear to me to be legitimate. The case of Benedict v. Benedict, 5 Day 464, established a different principle, and, in my view, a more correct one.
The legal title to the house and barn in the case before us is in the defendant, and if the plaintiff has any remedy, it must be in chancery, as was considered in the case of Benedict v. Benedict.
The judgment of the county court is therefore reversed.