96 Wash. 57 | Wash. | 1917
— Appellant brought action to foreclose a chattel mortgage given by defendant Thomas S. Sewell to plaintiff upon a certain pump house and motor and all pipe and all improvements of every kind and nature, excepting one
Sewell paid none of the principal or interest of the debt, and on July 8, 1912, immediately after the maturity of the note and mortgage, respondent Perry began a contest of the entry against Sewell, which was prosecuted in the Federal land office. Sewell made default in the contest. Perry was given the preference right of entry and thereupon entered the same as a desert land entry. This action was begun on April 12, 1915. Perry was made a party to the action as claiming some right, title, or interest in and to the mortgaged property, alleged to be subordinate and subject to the claim or interest of appellant and his lien under the mortgage.
It appears from the evidence that Sewell abandoned the premises and did not remove the pipe during his term. He had the right of possession of the land in question under his desert land entry at the time the alleged chattel mortgage was executed, but forfeited his right of entry and never claimed the pipe. It appears also that the pipe was joined together in one continuous line and placed in the soil on the land in question, the most of it being completely buried, but a small part of it being left uncovered.
The trial court found, among other things, that Sewell procured the pipe and installed it upon the land in construction of an irrigation system which was of a permanent nature;
It is contended by respondent that, inasmuch as the pipe was imbedded in the soil and became a part of the permanent system of irrigation attached to the soil, it is therefore a fixture and real estate and cannot be subject to a chattel mortgage. This condition is important only to determine whether or not property which may be considered real or personal property is one or the other according to the acts of the parties, in the absence of an agreement relating thereto.
Generally speaking, an agreement that chattels affixed to realty shall retain a personal character may be either in writing or parol. Broaddus v. Smith, 121 Ala. 335, 26 South. 34, 77 Am. St. 61; Tyson v. Post, 108 N. Y. 217, 15 N. E. 316, 2 Am. St. 409; Western North Carolina Railroad v. Deal, 90 N. C. 110. In general, it may be said that almost anything affixed to realty may by agreement be treated as personalty. Thus it has been held that houses and other buildings, machinery, railroad tracks, nursery stock, and, indeed, practically everything which before annexation was personal property may still retain their chattel character by an agreement to that effect. But the right to preserve the personal character of fixtures by agreement is limited to chattels which are attached to the realty in such a manner that they may be detached without being destroyed or materially injured, or without destroying or materially injuring the realty to which they are attached. Henkle v. Dillon, 15 Ore. 610, 17 Pac. 148; Ford v. Cobb, 20 N. Y. 344; Eaves v. Estes, 10 Kan.
In the last cited case, this court held, in conformity with the great weight of authority, that:
“Whether fixtures attached to real estate should be regarded as personalty or realty is largely governed by the intention of the contracting parties even so far as the rights of a former mortgagee are concerned, subj ect to the limitation that the fixtures, which, but for the stipulation, would be regarded as realty, can be removed only when such removal can be effected without injury to the real estate.” [Syllabus].
And, in the course of the opinion, language from the case of Ford v. Cobb, 20 N. Y. 344, was quoted with approval, as follows:
“But it is otherwise with things which, being originally personal in their nature, are attached to the realty in such a manner that they may be detached without being destroyed or materially injured, and without the destruction of, or material injury to the things real with which they are connected; though their connection with the land or other real estate is such that in the absence of an agreement or of any special relation between the parties in interest, they would be a part of the real estate.”
Of course, as was observed in Binkley v. Forkner, 117 Ind. 176, 181, 19 N. E. 753, 3 L. R. A. 33:
“If, in the course of constructing a house, brick should be placed in the walls, and joists and beams in their proper places, the brickmaker and sawyer would not be permitted to despoil the house by asserting an agreement with the owner that the brick and beams were to retain their character as personalty notwithstanding their annexation. . . . But when chattels are of such a character as to retain their identity and distinctive characteristics after annexation, and do not thereby become an essential part of the building, so that the removal of the chattels will not materially injure the building, nor destroy or unnecessarily impair the value of*61 the chattels, a mutual agreement in respect to the manner in which the chattels shall be regarded after annexation will have the effect to preserve the personal character of the property between the parties to the agreement.”
It has been held in many cases that, if competent parties make an express agreement that fixtures shall retain their character as chattels, there can be no doubt that the agreement is binding as between the parties thereto. Badger v. Batavia Paper Mfg. Co., 70 Ill. 302; Kaestner v. Day, 65 Ill. App. 623. And where one purchases an article to be annexed to the freehold which, from its character, may, after annexation, be either realty or personalty according to the intention of the parties, the giving of a chattel mortgage thereon to the seller is sufficient evidence of an intention that the fixture shall retain its character as personalty. Edwards & Bradford Lumber Co. v. Rank, 57 Neb. 323, 77 N. W. 765, 73 Am. St. 514; Arlington Mill & Elevator Co. v. Yates, 57 Neb. 286, 77 N. W. 677.
An agreement that the fixture shall retain its personal character is said to be implied from the mere giving of a chattel mortgage. Sowden & Co. v. Craig, 26 Iowa 156, 96 Am. Dec. 125; Campbell v. Roddy, 44 N. J. Eq. 244, 14 Atl. 279, 6 Am. St. 889; Ford v. Cobb, supra; Tibbetts v. Horne, 65 N. H. 242, 23 Atl. 145, 23 Am. St. 31, 15 L. R. A. 56; Tifft v. Horton, 53 N. Y. 377, 13 Am. Rep. 537; Eaves v. Estes, 10 Kan. 314, 15 Am. Rep. 345; Sword v. Low, 122 Ill. 487, 13 N. E. 826; Binkley v. Forkner, supra; Warner v. Kenning, 25 Minn. 173; Burrell v. Wilcox Lumber Co., 65 Mich. 571, 32 N. W. 824; Henkle v. Dillon, 15 Ore. 610, 17 Pac. 148; Andrews & Co. v. Chandler, 27 Ill. App. 103; Miller v. Griffin, 102 Ala. 610, 15 South. 238. It is, therefore, well settled, as between Sewell and appellant, that the status of the pipe mortgaged to appellant was fixed as a chattel.
The difficulty is in determining the effect of this agreement as to third parties, for it is also well settled that, while
Respondent cites authorities to the effect that a subsequent purchaser for value is an innocent purchaser, and that fixtures attached to the soil are as real estate and not subject to a chattel mortgage seeking to hold a lien thereon as a chattel. That is true where a subsequent purchaser for value has no notice, either actual or constructive, or notice such as our statute provides, which is equivalent to actual notice, that the property in question has been agreed and determined to be chattel property. The respondent here is not an innocent purchaser for value. He is merely a subsequent occupant of
Under the facts and circumstances shown, we are impelled to the conclusion that the pipe mortgaged was, by virtue thereof, agreed by the former entryman and possessor of the desert land entry to be chattel property and not a part of the real estate.
Notwithstanding the fact that he made what is called three years proof, under which he proved the methods by which he had attempted to reclaim the land and included in his improvements the pipe purchased, that must be taken and understood to have been subject to the lien which he had theretofore voluntarily given for the money which he had borrowed with which to purchase the same. It was, therefore, not fraudulent for him to make such proof in attempting to obtain title to the land.
Equity and good conscience demand that appellant’s mortgage be enforced according to its terms. It may be said in opposition thereto that any attempt to remove the pipe from the land will constitute a trespass against the possession of the respondent; and, also, that it is impossible to remove the
It is shown by the evidence that the pipe in question can be removed without permanent injury to the real estate. Such injury as would occur would be temporary only, and that could be avoided by removing it at a time when the land is not being irrigated, or during the fall and winter months. Notwithstanding the extreme character of this case, we think appellant entitled to such a decree.
The judgment of the lower court will be reversed in so far as it decreed that appellant was not entitled to a judgment of foreclosure against the pipe described in the chattel mortgage, and further providing for the protection of the rights of the respondent in the matter by decreeing that the pipe shall only be removed at a time when there is no irrigation being done upon the premises or during the months between November and March inclusive, and that no growing tree shall be removed, despoiled or injured upon the premises, or any permanent structure thereon, and that the soil removed shall be restored in as good condition as before.
Ellis, C. J., Mount, Fullerton, and Parker, JJ., concur.