delivered the opinion of the court:

On the 1st of January, 1853, Eunice Lovejoy, as guardian of certain minor heirs, leased to one William Jones, now deceased, husband of one of the defendants m error, a certain lot in Princeton, for the term of three years, the lease containing a proviso, that Jones might erect such buildings on the premises as he should think proper, and have the right to- remove them at the end of the term. Jones took possession and erected a small frame building, which he used as a residence and shop, the building resting on posts set in the ground. To this building he afterwards attached a. bakery. On the 2d of September, 1857, he executed to one Matson a chattel mortgage on these structures, describing them in the mortgage as “ goods and chattels,” and on the 12th of September, 1857, he executed a similar mortgage to one Alvin Ballou, brother of the plaintiff in error. Between that date and the spring of 1858, he left, with his family, both the premises and the town, and after residing in’ Bloomington and Mendota for more than two years, returned to Princeton, and died in 1860, without again occupying, or, so far as appears, claiming any interest in this building. On the 81st of July, 1858, Matson sold the building under his chattel mortgage, and Alvin Ballou became the purchaser. The property was then occupied by tenants of Jones, who seem to have attorned to Matson on the forfeiture of the mortgage to him, and, after the sale, to have attorned to Ballou. These tenants remained in possession until the expiration of their lease, in September, 1858, when one of them took a new lease from Ballou, and the property continued to be occupied under him or his brother, the plaintiff in error, to whom he after-wards sold, until September or October, 1860, when the tenant left, and while the property was standing vacant, Mrs. Jones borrowed the key from the person with whom it had been deposited, moved in, and took and retained possession. The plaintiff in error brought an action of replevin for the recovery of the property, and the verdict and judgment in the court below having been against him, he has brought the record to this court.

We see no ground whatever upon which this verdict is to be sustained. It is urged that the property is not personalty but realty. Without reference to the question of how it was annexed to the soil, it is sufficient to advert to the fact that it has been, from the beginning, treated as, and admitted to be, personal property, by all the parties interested therein. By the terms of the original lease between Lovejoy and Jones, it was to be personal property, and Jones gave the mortgages upon it as personal property, under which the plaintiff claims, and in that way obtained money or credit. If it had been realty he would have had no title to it, and to have mortgaged it would have been a fraud. It is perfectly clear that all persons claiming under Jones are estopped from denying that the building is personal property.

It is urged that Mrs. Jones is entitled to protection under the homestead law. Without considering the other legal objections to this proposition, it is sufficient to say that Mrs. Jones and her husband had been out of possession for more than two years, during which time the plaintiff in error was in possession, having properly acquired it under a mortgage executed by Jones, and neither Jones nor his wife having occupied or claimed the property as a homestead during that period. She then improperly intrudes upon Ballou’s possession. She cannot be permitted to protect her possession acquired by a trespass, by setting up a homestead claim.

Eeither can the defendant protect her tortious possession on the ground that the title to the property has vested in the owners of the fee. The original lease gave the tenant the right to remove all buildings, and in the absence of all evidence, it must be presumed, as between the occupant claiming under the original lessee and third persons, that the tenancy has continued as it began. The possesion of Ballou is sufficient prima fade evidence of his title to the property, as against all persons except the owners of the fee, from whom the possession was originally derived by Jones.

Sevei'sed and remanded.