70 P. 943 | Idaho | 1902
— This action was brought to enjoin the sheriff of Kootenai county from foreclosing a chattel mortgage on a hotel building situated in Bonner’s Ferrjq under the provisions of sections 3390-3393 of the Bevised Statutes, by notice and sale, and to have said chattel mortgage declared null and void. The facts are substantially as follows: On April 11, 1900, Joseph P. Beeler executed to the C. C. Mercantile Company, Limited, five promissory notes amounting in the aggregate to $900, and to secure the payment of the same executed said chattel mortgage on the hotel building known as the “International Hotel,” situated on lots 1, 2, 3, and 4, in block 5, first addition to Bonner’s Ferry, Kootenai county. Said hotel building is
The main contention is as- to whether said hotel building, under those facts, is real estate or personal property. It is contended by counsel for respondent that it is personal property, for the reason that at the time Beeler became the owner of it and the lots on which it stood he elected, for his own convenience, to treat the hotel building as a chattel, and to mortgage it as such, so that he might remove it from the lots, the east half of which he conveyed at the same time to another party; and that, having elected, at the very inception of his ownership, to treat it as a chattel, it became one; and that he might, under the law, place a valid chattel mortgage upon it. In support of that contention counsel cites Jones on Chattel Mortgages, section 124, and authorities there cited, and Ewell on Fixtures, page 68, and authorities there cited. The former authority holds that fixtures may become chattels by agreement of parties as between themselves, and it is conceded that the ordinary distinction between real estate and chattels exists in the nature of the subject, and cannot, in general, be changed by the convention or agreement of the parties. Mr. Ewell, after discussing the rule contended for by counsel, and citing authorities for and against it, saj^s, on page 69, as follows: “The better reason and the weight of authority is that such agreement [to change real estate to personal property] or understanding, express or implied, must have existence prior to the annexation of the chattel to the land; and that, if the thing is annexed by a stranger, without the prior consent of the owner of the land, or any contract with him, express or implied, it cannot afterward become personal property by the mere oral assent of the land owner, without a severance from
Section 3385 of the Eevised Statutes, as amended (see Acts 1899, p. 292), prescribes upon what property a chattel mortgage may be given, and is as follows: “Chattel mortgages may be made upon all property, goods or chattels, not defined by statute to be real estate, upon growing crops, and upon crops to be sown and grown in the future; but, should the persons executing mortgages upon crops, to be afterward sown, fail to sow or cause the same to be sown, no lien of such mortgages shall attach to crops sown by other persons upon the lands described in said mortgages, except in so far as the mortgagors in said mortgages have or retain interests in said crops.” The provisions of that section limit chattel mortgages to property other than real estate and upon crops. Therefore a valid chattel mortgage cannot be given upon property other than that there prescribed; and there is good reason for this rule, as the registry law requires (Acts 1899, p. 121) chattel mortgages to be filed with the county recorder, and kept there, and certain facts contained in the mortgage must be entered in a record kept for that purpose; while a real estate mortgage must be filed by the recorder and recorded at length in a record provided for that purpose. They are recorded in different books, and a real estate mortgage registered as a chattel mortgage, vice versa, would not be a legal registry or recording. The provisions of said section are a prohibition against mortgaging real estate by chattel mortgage.
After defining real estate and personal property, our statute prescribes the method and manner of encumbering and transferring each class, and it is not in the power of parties to waive
The judgment must be reversed, and the cause remanded, with instructions to enter judgment in favor of the appellant as prayed for in the complaint. Costs are awarded to appellant.