193 P. 902 | Or. | 1920
What was the character of the elevator in June, 1912, when the plaintiff agreed to sell and Wilson agreed to buy the premises at Fourth and Ankeny Streets? Was the elevator personalty, or was it realty? If the elevator, notwithstanding its installation in the building, had never lost its character as personal property, then it may be assumed that it was competent for the plaintiff and Wilson to agree, either by parol or in writing, that the elevator should continue to remain personalty and beyond the grasp of the deed. If such was the quality of the elevator, then Wilson and the plaintiff contracted to except from the deed an article which always had been and was then in truth personal property; and, hence, in that situation the contract would be binding at least as against Wilson, although it might not be binding as against Dudley if he purchased without knowledge of the actual character of the elevator and without notice of the agreement. If, however, the elevator lost its character as personalty and was transformed into realty when it was placed in the building, then we have to deal with a problem which is not easy of solution.
The elevator was used by the plaintiff and it was adapted to the purpose 'for which it was designed.
Subject to certain recognized limitations, an annexation not intended to be permanent will not transform an article of personal property into realty; but, in order to discover whether the annexation was intended to be permanent, the mode of annexation may be considered and also whether the annexation is to make the chattel on the land more useful. Here the elevator was installed for the sole purpose of serving the building; and although the elevator in controversy, if installed by a tenant, might in some circumstances be treated as a trade fixture, yet, since it was installed by the owner of the land, it must, in the circumstances thus far narrated, be treated as having been converted into realty the moment it was placed in the building; and therefore as between the grantor, Blake-McFall Company, and the grantees, Wilson and Dudley, the deed operated to convey the elevator to the grantees, unless it was legally kept from the embrace of the deed.
In addition to the facts already related there is another circumstance which must be noticed, although it does not affect the result. The president of the plaintiff corporation testified as follows:
“When we decided to sell that building, we decided to sell it because we realized that it was not suitable as a permanent home for our business, and inasmuch as we had expected to take these chutes with us if we ever moved, when we substituted the elevator for one of the chutes we also expected to take the elevator with us.”
This is one way of saying that if they did not move they did not intend to detach the elevator. There is nothing to indicate when it was decided to sell. There is nothing to show the time when the plaintiff’s officers realized that the building “was not suitable as a per
“The destination which gives to movable objects an immovable character results from facts and circumstances determined by law itself, and could neither be established nor taken away by the simple declarations of the proprietor, whether oral or written.”
This rule was approved in Wadleigh v. Janvrin, 41 N. H. 503 (77 Am. Dec. 780). To the same effect are Horne v. Smith, 105 N. C. 322 (11 S. E. 373, 18 Am. St. Rep. 903); Enterprise M. & M. Co. v. Cunningham, 84 Or. 319, 323 (165 Pac. 224). Indeed, the plaintiff concedes in its printed brief that the secret intention with which chattels are attached does not govern, but that the controlling intention is that “which the law deduces from all the circumstances of the annexation.” As between Blake-McFall Company, the grantor, and
The plaintiff contends that even though it be decided that the elevator must be treated as realty because of the circumstances in which it was installed by the owner of the building, nevertheless it was legally excepted from the deed; and to support its contention the plaintiff relies upon the stipulation found in the written contract of June, 1912, between the plaintiff and Wilson, the letter written to Blake-MeFall Company by Wilson under date of April 29,1915, and parol evidence to the effect that when the deed was delivered it was understood by the parties that the elevator was excepted from the operation of the deed. The defendants attack the position taken by the plaintiff by arguing that the parol evidence was incompetent and must be excluded from consideration; and that the stipulations in the contract of June, 1912, were merged in the deed which was subsequently made in pursuance of the contract, and that, consequently, the deed is the only writing by which the rights of the parties can be measured.
Appellate courts disagree upon the question as to whether parol evidence is competent. There is an abundance of highly respectable authority for saying that the grantor may avail himself of parol evidence to show an oral agreement between himself and the grantee reimpressing the character of personalty upon a given article, where by annexation it had previously become a fixture and a part of the realty, and excepting it from the operation of the deed: Foster v. Mabe, 4 Ala. 402 (37 Am. Dec. 749); Russell v. Meyer, 7 N. D
“The better opinion seems clearly to be that a sale and conveyance of the real estate will (there being no*639 exception in the deed of conveyance) pass the fixtures thereto annexed, notwithstanding a parol exception thereof at the time of such sale”: Ewell on Fixtures (2 ed.), 515.
If personalty has been transformed into realty, then logically it ought to be governed by the rules which control realty. The precedents which reach the conclusion that a fixture may by a parol agreement be constructively reconverted from realty into personalty do so only by adopting artificial and arbitrary premises. Moreover, the universal rule is that, in the absence of an agreement, a fixture which has taken on the character of realty passes with a conveyance of the land and that it passes by force of the writing. If, then, the writing enforces a transfer of the fixture, the force of the writing is opposed and the terms/ of it are necessarily contradicted by any agreement which purports to withdraw such fixture from the operation of the deed; and therefore, if that agreement rests in parol, it inevitably results in an attempt by parol to vary the terms of the written deed.
The plaintiff points to Muir v. Jones, 23 Or. 332, (31 Pac. 646, 19 L. R. A. 441), and argues that this court has at least impliedly given assent to the parol exception doctrine. The syllabus which precedes the reported opinion probably carries the implication suggested by the plaintiff; but a careful analysis of the opinion will disclose that the question involved here was there expressly excluded from consideration. In Muir v. Jones, the appeal involved an instruction given to the jury. This instruction consisted of two parts. In the first part the court told the jury th^t if, when the owner sold the land, she by parol reserved to herself the sawmill, engine and boiler and the right to remove the same, and if defendant had
“No exception was taken to the first part of this instruction, hut only to that portion of it which declares that the engine and boiler, when so attached to the soil as to become a part of the realty, pass to the grantee with the conveyance, unless he had notice of the intention to preserve them as personal property and reserve them from the operation of the conveyance.”
Judgment for the defendant was affirmed on the ground that he was a bona fide purchaser without notice. Thus it is seen that the controversy in Muir v. Jones did not require a decision of the point presented here; and, moreover, the court there took the precaution of saying that the point was not saved by an exception.
It must he remembered that we are not now dealing with an article which by reason of an agreement or by force of attending circumstances has always been personal property and never changed from personalty into realty. If the elevator had never be.en caused to take on the quality of realty, quite a different situation would be presented. But we are dealing with a subject which, as we have determined, took on the character of- realty when the owner annexed it to the building on its land. We are unable to concur with counsel for the plaintiff. We think that the parol exception doctrine is, in the end, fraught with danger to prop
As between grantor and grantee the strict rule of the common law prevails, and all fixtures annexed to the realty pass by a conveyance of the freehold, unless they have been excepted from the conveyance in some manner sanctioned by the law: Noble v. Bosworth, 19 Pick. (Mass.) 314; Wolff v. Sampson, 123 Ga. 400 ( 51 S. E. 335); 11 R. C. L. 1067, 1068. Since, as we hold, the law does not sanction a parol agreement, it follows that the elevator was not legally excepted from the deed, unless the written contract of June, 1912, had that effect.
The contention of the defendants is that the contract of June, 1912, together with all its stipulations, was merged in the subsequent deed which was executed in performance of the contract; that by reason of such merger the contract was extinguished so that it is not now existent; and that, therefore, the deed is now the only writing by which the rights of the parties can be determined. The defendants are not without authority for their position, for the following precedents support their contention: Bond v. Coke, 71 N. C. 97, 99; Clifton v. Jackson Iron Co., 74 Mich, 183 (41 N. W. 891, 16 Am. St. Rep. 621); Noble v. Bosworth, 19 Pick. (Mass.) 314.
So, too, the parties interested can accomplish after annexation what they could have accomplished before annexation.
When the plaintiff and Wilson agreed that the elevator should not be “included in the equipment of the building” and “that no shelving, counters or fixtures belong to the building,”' they at that moment agreed to treat the elevator as personal property; and, consequently, although not physically detached, it was thereupon constructively detached, and thenceforth it was, as between Wilson and the plaintiff, personal property. It was competent for the parties to make a collateral agreement respecting the elevator. The law did not require all the stipulations to be in a single writing. "When the deed was executed, it operated only upon realty; personal property was beyond its grasp. The deed conveyed the land, and every annexed article which at the time of the delivery of the deed possessed the quality of realty; it did not transfer personalty; and therefore, since the preliminary written agreement had already reconverted the elevator from realty and reimpressed it with the character of personalty, at least as between the plaintiff and Wilson it was personal prop
The plaintiff relies upon the conveyance from Wilson and the Dudleys to the Hughes Investment Company to prove a conversion of the elevator by the defendants. The defendants assert that this conveyance did not amount to a conversion, and in support of their position cite Walsh v. Sichler, 20 Mo. App. 374. The fácts reported in that precedent are dissimilar to the facts here. That case involved trade fixtures installed by a tenant during his tenancy. The purchasers and subsequent lándlords were advised of the lease and knew of the tenancy; and the original owner and landlord neither knew that these fixtures had been placed in the building nor intended to convey anything that belonged to the tenant. The purchasers informed the tenant that they had bought the premises and forbade him from removing the fixtures as they claimed that the fixtures passed with the deed. “After this, the plaintiff voluntarily quit the premises, leaving the fixtures in the house.” Manifestly, the conveyance by the original owner did not operate as a conveyance of the trade fixtures which had been installed by the tenant.
Under this doctrine, if the new lease is silent upon the subject of fixtures installed during the old lease, the tenant loses the fixtures, unless he moves them out of the building before the end of the old lease, notwithstanding the fixtures are his property at the very moment the new lease is executed and in spite of the fact that he not only does not intend to abandon them but supposes that they continue to be his property when the new lease begins, and in despite of the fact that not a single moment of time intervenes giving the landlord the right of possession; but if, however, an hour before the end of the old lease the tenant loads his fixtures on a truck and one minute before the expiration of his old term carries them around the block and then one minute after the beginning of the new term returns with them and re-installs them, they continue to be his property with the accompanying right of removal. Judge Cooley, whose uncommon fund of common sense has so greatly enriched American jurisprudence, has pertinently said:
*647 “What could possibly be more absurd than a rule of law which should in effect say to the tenant who is about to obtain a renewal: ‘If you will be at the expense and trouble, and incur the loss, of removing your erections during the term, and of afterward bringing them back again, they shall be yours; otherwise you will be deemed to abandon them to your landlord’ '' Kerr v. Kingsbury, 39 Mich. 150 (33 Am. Rep. 362).
The judgment was against the three defendants. The facts as disclosed by the record are not sufficient to- sustain a judgment against Eugene A. Dudley or his wife. However/' Wilson cannot escape liability.
When Wilson converted the elevator it was annexed to the building. When the elevator was sold to the Hughes Investment Company, it was disposed of as a part of the building and presumably was paid for as a part of the building; and, hence, Wilson became liable for the value of the elevator as it then was, — ’“not its value as torn down for removal”: Smyth v. Stoddard, 203 Ill. 424, 430 (67 N. E. 980, 982, 96 Am. St. Rep. 314).
As against' Dudley and his wife, the judgment is reversed; hut, as against Wilson, the judgment is affirmed.
Aeeirmed in Part, Beversed in Part.
Beheading Denied.