56 Ark. 55 | Ark. | 1892
The parties agree in stating two questions for our consideration, which we find to be decisive of this cause. They are as follows :
First. Is there a partial failure of consideration of the notes and mortgage sued on ?
Second. Is the new machinery which is involved in this suit, which is not mentioned in the mortgage, and which was purchased more than seven years after the execution of said mortgage, to be treated as fixtures, and be held subject to said mortgage ?
Upon the first question we have found no difficulty. For if it be conceded that Kimball and Perry sold the Dyer homestead to Choate and Scott under an agreement to make a deed when they received a patent, and that the price of the land constituted a part of the consideration for the note and mortgage sued on, still the failure to make a deed will not warrant a reduction of the note, where such failure is attributable alone to a default on part of the purchaser.
If the sale included that land, the purchasers were placed in the immediate possession of it and permitted to enjoy it so long as they desired. Their possession was never disturbed by their vendors, and they got every thing for which they contracted ■ except the legal title, for which it is not shown they made any demand. Several years after they had been let into possession, and while they were in its undisturbed enjoyment, it was forfeited to the State for the non-payment of taxes.
The forfeiture, which divested the vendors of their legal title, was the only cause of their failure to make a deed, and it arose without any fault on their part; for although no legal title had been made, rhe purchasers, having been let into the possession and permitted to hold it, were bound to pay the taxes ; and when they failed to do so and the lands were forfeited to the State, the obligation to make a deed could not be performed ; as such result was attributable to them, the obligation was released, and no right arose to a reduction upon the price agreed upon.
Upon the second question we'have encountered more difficulty. If the boiler, saw-rig, shingle mill and planer were fixtures, they became subject to the prior mortgage. Whether they were or were not fixtures, is the question that has perplexed us. The rule for the determination of the question varies according to the relation of the parties between whom it arises ; and it is less liberal in permitting a removal as between mortgagor and mortgagee than as between landlord and tenant.
The term ‘ ‘ fixtures ’ ’ ' has reference to articles which, in and of themselves and irrespective of annexation to land, are of a chattel nature, but by reason of such annexation have become a part of the land. The point of difficulty arises in determining when there has been such annexation of chattels as to make them a part of the land, or irremovable fixtures.
It is said that the true criterion, established by the authorities, consists in a united application of several tests, as follows :
“1. Real or constructive annexation of the article in question to the realty.
“2. Appropriation or adaptation to the use or purpose of that part of the realty with which it is connected.
“3. The intention of the party making the annexation to make the article a permanent accession to the freehold, this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation and the policy of the law in relation thereto, the structure and mode of the annexation and the purpose or use for which the annexation has been made.”
Mr. Ewell says that “of these three tests, the clear tendency of modern ‘ authority seems to be to give preeminence to the question of intention to make the articles a permanent accession to the freehold, and the others seem to derive their chief value as evidence of such intention.” Ewell on Fix. p. 22.
Without making a detailed recital of the facts in this case, it may be stated that the annexation was sufficient to meet the requirements of the first test; but that the articles could be removed without any injury to the freehold or any material injury to themselves, and that the articles were appropriate and adapted to the use of the realty with which they were connected, but that they were equally appropriate and adapted to the use of other saw mills. The articles may or may not have been fixtures within the first and second tests, and whether they were or were not, must be determined by an application of the third. The actual intention of the mortgager in making the annexation was that the articles should not become a permanent accession to the freehold, but such intention was not disclosed to the mortgagee ; and whether the mortgagor’s undisclosed intention can continue their chattel nature after actual annexation is a question upon which the authorities do not agree. The affirmative has been held by the courts of New York and Kentucky, in cases where the articles could be removed, without injury to the mortgaged property and were not within the contemplation of the mortgagee in taking his mortgage. Tifft v. Horton, 53 N. Y. 377; Clore v. Lambert, 78 Ky. 224.
But we have not deemed it necessary to determine that question.
The authorities hold that where the parties so agree such articles will retain their chattel nature, and to this end an agreement implied is as effective as one expressed. It is shown that a custom obtained, in the country where the land lies and the mortgage was made, to put such articles upon land for temporary use and to remove them when removal became desirable — in the light of which they' would not, in ordinary understanding, be a part of the land, but removable chattels. When so attached as to be thus regarded, they do not become fixtures under the third test. Wolford v. Baxter, 33 Minn. 12.
It might be inferred from the mortgage itself that it was made with reference to this custom ; for, in describing the mortgaged property, it enumerated “ lands ” and “also” other property, embracing machinery upon the land of the same character as that in dispute. If land included the machinery upon it, no specific description of the machinery was necessary ; and the fact that it is found indicates that the parties did not treat it as a part of the land. And as they treated such articles as chattels, and did not stipulate that the mortgage should embrace such of a like kind as should be thereafter put upon the land, it would be implied that the mortgage was not intended to cover them. But however that might be, as the custom ¿s shown to have been general, the inference is that the parties contracted with reference to it. Varner v. Nobleborough, 2 Greenl. 121, and cases cited ; Ewell on Fix. p. 224.
We conclude that the intention of the mortgagors, with the implied assent of the mortgagee, preserved the chattel nature of the articles, and that they passed by sales as chattels.
The judgment, in so far as it effects the mortgagors and the property described in the mortgage, is affirmed ; but in so far as it affects the defendants, who claim the machinery not described in the mortgage, under sales from the mortgagors, it is reversed, and the bill must be dismissed.
