It does not positively appear in this case whether the house, which is the subject of this action, was attached to the soil either on the lot on which it was built or on the lot to which it was removed. The presumption is that it was so attached in both instances, so as to form part of the realty. ’ In transitu between the two lots, it was personalty, the subject of conversion. Huebschmann v. McHenry, 29 Wis., 655.
That case, it is true, holds the building there to have remained personal property on the lot to which it had been removed. But that is on the sole ground that the defendant, who removed it from the plaintiff’s land to his own, was a mere trespasser, and could not therefore divest the plaintiff’s title by attaching the building to his own soil. Eor reasons presently appearing, that distinction does not apply to this case.
It is difficult to understand how the respondent here could be held guilty of conversion of the house, as personal property, when it appears that he had no possession, reaPor constructive, of the house while in transitu. His only possession, if possession it be, arises from the attachment of the house to *519bis soil, as part of Ms realty, by Lee, tbe equitable owner of tbe bouse. This tbe respondent suffered Lee to do, but bad otherwise no part in tbe removal.
It is more difficult still to understand tbe right of tbe appellant to maintain tbe action. He bad made a subsisting contract with Lee for tbe sale of tbe lot on which Lee built tbe bouse, and of which Lee was in possession under tbe contract, when be removed tbe bouse. It is true that Lee bad failed in making payments required by tbe contract. But tbe appellant bad not foreclosed tbe contract, and bis title in tbe lot was that of mortgagee in fee; -tbe equitable estate, possession and right of possession being in Lee as owner of tbe bouse and lot. Button v. Schroyer, 5 Wis., 598; Baker v. Beach, 15 id., 99; Landon v. Burke, 36 id., 378. Subject to tbe right of tbe appellant as mortgagee, Lee bad therefore perfect right to dispose of tbe bouse; and tbe appellant bad no possessory title to it on which be could maintain this action. If tbe bouse bad been removed by a stranger, a trespasser, as in Huebschmann v. McHenry, tbe right of action, replevin ox* trover, would have been in tbe respondent, not in tbe appellant. It is true that Cole, J., remarks, arguendo, in Seatoff v. Anderson, 28 Wis., 212, that tbe purcbasei-, under such a contract and in such circumstances, would have no right as against bis vendor, to remove tbe building and diminish tbe value of tbe security. But, conceding that, it is apparent that in such a case tbe x-emedy of tbe vendor is not by action for damages, but by proceeding to stay waste. Fairbank v. Cudworth, 33 Wis., 358.
By the Cov/rt. — Tbe judgment of tbe court below is affirmed.