Montgomery v. McKeever

Adkins, J., delivered the opinion of the Court. William Montgomery, the appellant, on June 20th, 1925, by contract in writing, agreed to sell to Robert L. McKeever, one of the appellees, a tract of land containing fifty acres with the improvements thereon, in which “seller reserves right to remove the boxwood bushes in the nursery at the side of the house and every other one of the boxwood plants along the front drive.” A deed for the property was executed on August 1st, 1925, in which there was no reservation of the right to remove the boxwood. Nor was there any such reservation in a deed of trust of said property executed on the same date by the grantee to the grantor and several other persons; nor in certain mesne conveyances by which the property was in the early part of 1931* conveyed to Regina L. McKeever, wife of Robert. It appears that nothing was done about the removal of the boxwood until December 16th, 1931, when appellant wrote Mr. McKeever. that he was ready to remove them.

Mr. McKeever, in a subsequent conversation some weeks later, told appellant that neither Mr. or Mrs. McKeever thought appellant was entitled to the plants. However, appellees subsequently agreed to allow the removal. When appellant in March, 1932, sent a nurseryman to remove them, after some of them had been removed a dispute arose as to what the original agreement, was, and Mr. McKeever ordered the men away and refused to permit the removal of any more of the plants. It appears from undisputed testimony that between the date of the original contract and the letter of December 16th, 1931, the Mc-Keevers were at considerable expense in fertilizing and caring for the plants.

On the refusal by appellees to permit the removal of the remaining plants claimed by the appellant, he brought, this action of replevin. This appeal is from a judgment for defendants on a directed verdict. ⁵⁸⁸ We find it necessary to consider only one of the several questions presented in the brief and oral arguments of the respective parties, viz.: Were the shrubs personal property subject to an action in replevin? That question, we think, was definitely determined in Western Maryland Dairy Co. v. Md. Wreckage Co., 146 Md. 318 , 126 A. 135, 136 . In that case, in an opinion by Judge Parke, the law of constructive severance, by agreement, of fixtures, and other property attached to the soil, was carefully and fully considered, and the authorities reviewed.

Many other cases in other jurisdictions not therein cited, including some of those cited by appellant, support the conclusion therein reached on the facts of that and the present case. It is unnecessary to review them here. There the Western Maryland Dairy Company owned a lot and the building thereon, which it agreed on March 14th, 1922, by a written contract, to sell to the News Publishing Company of Baltimore City. The transaction was to- be closed at any time on or before December 31st, 1922, the vendor reserving the right to remove from the property, before- the date of the transfer, “all machinery and equipment located therein.” The transfer to- the News Publishing Company was not made within the time named,, but the time was extended to January 15th, 1923, and on January 17th, 1923, the deed was delivered and