86 P. 529 | Idaho | 1906
Lead Opinion
In this case the lessees of a saloon building in Boise City placed the usual bar fixtures, ice-chest, etc., in the building, attaching them to the same with screws, and also put in electric chandeliers and linoleum on the floor, and such other fixtures as are usually found in such places. Some time afterward the tenant executed to one Poole a chattel mortgage on all this property as security for the payment of a promissory note in the sum of $300. The mortgage was executed on the eighteenth day of February, 1905. The tenant neglected and refused to pay his rent as provided for in the lease, and on the thirteenth day of June, 1905, the landlord, the plaintiff in this case, commenced an action for the sum of $85 rent due, and for treble damages for detention of the premises and for restitution thereof. The trial resulted in a judgment in favor of the plaintiff for rent and treble damages and the restitution of the premises, and on the seventeenth day of June, 1905, the sheriff evicted the tenant and placed the plaintiff in possession. The tenant does not appear to have claimed, or sought to remove, any of the fixtures he had placed in the building, nor did the sheriff remove them, nor does any demand appear to have ever been made for them by the tenant. On the first day of May, 1905,. the mortgagee, Poole, sold and assigned his note and mortgage to the defendants, B. H. Coleman & Company, and on the fifth day of July, Coleman & Company commenced proceedings before the sheriff for the foreclosure of their mortgage upon the fixtures. The sheriff duly and regularly served notice of the foreclosure proceedings, and on the eighth day of July, 1905, demanded of the plaintiff the possession of the property described in the mortgage, and that she deliver to him the key to the premises that he might remove the property therefrom. The plaintiff refused to deliver up possession of the property or to surrender the key to the premises, and the sheriff thereupon, under direction of the owners
The present case was commenced.by the landlord against the sheriff and the assignees of the mortgage to recover judgment against them for the value of the property forcibly removed by them from the saloon building after the expiration of the term of the tenant and after his eviction under judgment and process from the proper court. The property removed by the sheriff from the saloon building under the foreclosure proceedings was, undoubtedly, “trade fixtures,” except the curtain, which was a mere piece of personal property. (Bronson on Fixtures, sec. 33b, pp. 186-189; 19 Cyc. 1065; 13 Am. & Eng. Ency. of Law, 2d ed., 642.) Being that class of property commonly known and designated as trade fixtures, and being common to and used in the saloon business, the tenant was entitled to remove it at any time prior to the termination of his tenancy. Section 2882, Bevised Statutes, provides as follows: “A tenant may remove from the demised premises, any time during the continuance of his term, anything affixed thereto for the purposes of trade, manufacture, ornament, or domestic use, if the removal can be effected without injury to the premises, unless the thing has, by the manner in which it is affixed, become an integral part of the premises.” This statute clearly provides that the tenant may remove such fixtures during the continuance of his term, and is equally an implied prohibition against a removal at any time after the expiration of the term. It is the rule, however, even in the absence of a statute, by an almost unbroken line of authorities, that trade fixtures must be removed by the tenant prior to his surrender of possession to the landlord, and that if he fails to do so, and there is no agreement to the contrary, the right of the tenant to sever the property from the realty will be lost by him. (Taylor on Landlord and Tenant, 9th ed., sec. 551; Wood on Landlord and Tenant, 2d ed., sec. 529; note to Holmes v. Tremper, 11 Am. Dec. 241; Merritt v. Judd, 14 Cal. 60. See discussion in Brown v. Reno Elec. Light & Power Co., 55 Fed. 229.)
The judgment must be reversed, and it is so ordered, and the cause is remanded to the trial court, with direction to
Rehearing
ON PETITION FOR REHEARING.
Counsel for respondents has filed a petition for a rehearing in which he rather bitterly laments the loss of an ice-chest by reason of our former decision. After a further examination of the transcript in the ease, we are of the opinion that he should have his ice-chest. Counsel for both appellant and respondents having repeatedly referred to the front and back bars and ice-chest in the same connection and treated them in the same manner, we were led to the conclusion that they were all affixed and attached to the building in the same manner; but a further examination of the record discloses the fact that it is stipulated that the ice-chest ‘ ‘ was not attached to either the walls or floor of said building by screws or otherwise.” Without any further discussion as to the manner and method of attaching trade fixtures to a building, or the necessity for any particular kind or character of annexation in particular instances, we are content in this case to say that the ice-chest about which respondents’ counsel particularly complains was a mere article of personal property the same as the chairs and tables in the saloon, and should not be classed with the front and back bar as trade fixtures, as we have heretofore designated in the original opinion. We have not regarded it necessary to go into any extended discussion as to what constitutes trade fixtures nor as to the character of property that may be treated as such, nor have we attempted to point out any inviolable rule by which to distinguish between that class of property and such as may be ordinarily treated as mere personal property. We did, however, cite authorities which treat this subject in support of the statement that the property designated in the
Counsel in his petition for rehearing complains because this court has not seen fit to go into a discussion of the question as to the right of a lessee to mortgage fixtures under the law authorizing mortgages on personal property. We have not questioned his right to do so, and it is clear, both upon principle and authority, that the lessee of premises may mortgage any property that he places thereon, and which he has a right to remove. As between the mortgagor and mortgagee, it would make no difference whether he attached such property to the premises or not; the mortgagor by his own act could not convert property which he mortgaged as personalty into real estate so as to defeat the mortgage. It should be borne in mind, however — a distinction which counsel seems to have overlooked — that the lessee of the premises cannot enter into any agreement by way of mortgage or otherwise with a stranger, to which his landlord is not a party, that will in any way diminish or affect the rights of the landlord, or give to the mortgagee any rights or privileges superior to those enjoyed by the tenant. Any agreement between the tenant and a third party that certain property shall not become a fixture will not prevent it from, in fact, becoming a fixture in so far as the landlord is concerned and his rights are involved.
The original opinion herein will be modified to the extent of holding that the icc-ehest described in the stipulation of facts was not a trade fixture. In other respects the original opinion will stand as the decision of the court. Costs awarded in favor of appellant.
