15 S.E.2d 526 | Ga. Ct. App. | 1941
1. A furnace and its appliances are described in the petition as "one Sunbeam No. 24 Steel Furnace of the value of $240.00, and one Stokol Stoker Model No. DF 12463-2, of the value of $245.00, which are in the possession, custody, and control of said defendants as hereinafter set forth. Said property has not lost its identity, and can be identified by *103 name and number indelibly impressed thereon." It is alleged that said furnace and its appliances were attached to certain real estate by being "installed in a pit or basement excavated under said house for the same, and connected to said dwelling by piping or flues extending through the floors and basement of the dwelling where openings had been sawed and covered with gratings. The stoker was installed on the floor of said basement, and the burner thereof extended into the furnace by removing the grates and removing the ashpit door therefrom, the burner being slipped in the ashpit door and secured in the furnace, the space around the burner box at the ashpit door being sealed by placing around the furnace box brick and mortar." The circumstances under which the furnace is alleged to have been placed upon the realty show that it was an "irremovable fixture" and a part of the realty, where the parties at issue are the grantor and grantee in a security deed conveying the real estate to which the furnace was attached.
2. "Anything detached from the realty becomes personalty instantly on being so detached." Code, § 85-105.
3. Here the furnace was a chattel attached to the realty of the plaintiff, the grantee in the security deed, as an "irremovable fixture." Where, after the execution of the security deed, it was detached and carried away by the grantor in said deed, an action will lie for its recovery, and the facts that it was subsequently attached to the realty of the grantor in another county (but did not lose its identity as a furnace), and this realty was sold to an innocent purchaser, does not deprive the innocent owner, the plaintiff, of his property merely because some other person may be the innocent purchaser thereof, ignorant of the plaintiff's ownership.
4. Assuming, for the purpose of demurrer, that the allegations of the petition are true, the grantee, not having parted with title to the furnace and appliances, and not having done anything to estop it from asserting title, may recover said property even from an innocent purchaser in good faith. This is the same principle ordinarily applied which enables an owner to recover stolen property even from an innocent purchaser. The innocent purchaser's remedy is against the wrong-doer.
Mr. H. A. Bronson in his Treatise on the Law of Fixtures (published in 1904) states (page 7): "There are three ways by which the term `fixtures' may be defined: First, it may be considered as applying only to those chattels that have become so annexed to the realty as to be a part thereof, and consequently not removable against the will of the owner of the realty; second, it may be applied only to those chattels which, though annexed to the soil, may be severed and removed at the option of the one who annexed them; third, the term `fixtures' may be deemed to embrace all those chattels which, by reason of their annexation to the land, partake both of the nature of personalty and realty, irrespective of the question whether they are removable or not." The writer of this opinion, as does Mr. Bronson, prefers the third definition of "fixtures" which defines the term in a generic sense and includes within its scope both removable and irremovable fixtures. The Supreme Court of California has given a definition which, according to Mr. Bronson, includes all the component elements of a "fixture," as follows: "Fixtures are chattels or articles of a personal nature which have been affixed to the land in such a way as not to lose their identity." Merritt v. Judd,
The writer thinks that if we should adopt the third definition quoted above, we would have a separate nomenclature for chattels or personal property that do not lose their identity when attached to realty, whether under an agreement or under the circumstances and conditions which they are attached they are removable, or whether they are so attached to the realty as to become a part thereof and irremovable. Furthermore, under such a definition, the separate nomenclature "fixtures" would help us to determine between things attached to the realty which do not lose their identity — "fixtures" — and personal property or things incorporated into the realty, such as nails, brick, lumber, door-locks and the like, which, when used in the construction of a house, lose their identity *107
as separate things, and their individual existence is so completely merged into the house that they are not included in the separated nomenclature of "fixtures." "It is a maxim of great antiquity, that whatsoever is fixed to the realty is thereby made a part of the realty to which it adheres, and partakes of all its incidents and properties. By the mere act of annexation, a personal chattel immediately becomes part and parcel of the freehold itself. Every case in which there is a right of severing a thing from the freehold by virtue of the law of fixtures, is considered as an exception to this general rule." Shoemaker v.
Simpson,
An innocent owner is not to be deprived of his property merely because some other person may be the purchaser thereof, innocent or ignorant of the plaintiff's ownership. The plaintiff here did not part with possession or title to the furnace and appliances which, while attached to the property in Oconee County in the manner and under the circumstances described in the petition, were in contemplation of law, as between the plaintiff and Driver, "irremovable fixtures," a part of the realty (AtlantaGas-Light Co. v. Farrell,
Whatever was the intention of the wrong-doer, Driver (who severed the property), and the defendant, it was never the intention of the plaintiff that its personal property (which had become such by severance) should become a part of the wrong-doer's real estate to which it was removed and affixed, which real estate was subsequently sold to the defendant, nor was it the intention of the plaintiff that this chattel (the detached furnace) be attached to or become a part of the real estate of any other person; and even if, as between Driver, the wrong-doer, and the defendant, the furnace became realty or an "irremovable fixture" on account of his voluntarily attaching it to the property he sold to the defendant, and the other attendant circumstances, nevertheless it did not become an *109
"irremovable fixture" or realty as between the plaintiff and the defendant who purchased from the wrong-doer who had no title to the furnace. "A wrong-doer may lose his personal property by voluntarily attaching it to the land of another. A person not a wrong-doer may, by his own consent, lose his personal property by attaching it or allowing it to be attached to the land of another. . . And an innocent person may sometimes against his consent lose his personal property by the same being incorporated into the real estate of some other person, so that it can not be separated without great inconvenience and loss [such as the lumber and nails and brick incorporated in a building]. But we do not think that any innocent person can be deprived of the title to his personal property against his consent by having it attached without his consent to the real estate of another by a third person, where such personal property can be removed without any great inconvenience, and without any substantial injury to the real estate." (Brackets ours.) Shoemaker v. Simpson, supra. "As between grantor and grantee, the strict rule of the common law prevails, that, in the absence of an agreement to the contrary, all fixtures, whether actually or constructively annexed to the realty, pass by a conveyance of the freehold."Wolff v. Sampson, supra. If the personal property of the plaintiff (the severed furnace and appliances) when attached to other land of the grantor in another county did not become "irremovable fixtures" or a part of the real estate as between the grantee in the security deed, the plaintiff (which had legal title thereto) and the grantor Driver (who wrongfully severed it from such realty), or the defendant (the innocent purchaser from Driver the wrong-doer), then the plaintiff may recover, even if they were "irremovable fixtures" or real estate as between Driver, the wrongdoer, and the defendant. Woods v. McCall,
The plaintiff in error lays stress on Federal Land Bank ofColumbia v. Saint Clair Lumber Co.,
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.