16 N.Y.S. 660 | N.Y. Sup. Ct. | 1891
On October 25, 1879, George B. Cooper conveyed the mortgaged premises in question in this action to Watson P. Harvey and Martha Bailey, wife of Hiram E. Bailey, for the consideration expressed in the deed of $16,500; and, for the purpose of securing the payment of $14,500 of the purchase price of the premises, the grantees and Hiram E. Bailey executed and delivered to the grantor their bonds in the penal sum of $29,000, conditioned for the payment of such purchase money, and, as collateral to such bond, the grantees executed and delivered to the grantor the mortgage to foreclose which this action is prosecuted. A bill of sale
The remaining question raised on this appeal is as to the ruling and decision of the referee upon the question as to what passed under the mortgage. Upon this question the defendants insist that the machinery used in this mill was personal property, and did not pass to the mortgagee under the real-estate mortgage. It is a familiar principle that the same rule obtains between mortgagor and mortgagee of real estate as exists between grantor and grantee. Ordinarily the character of property, whether real or personal, is determined by the application of these tests: (1) Actual annexation, which must be of a permanent character, except in case of those articles which are not themselves annexed, but are deemed to be freehold from their use and character; (2) adaptability to the use of the freehold; (3) the intention of the parties at the time of making the annexation. In this ease the machinery that was in the mill at the time of the sale, as between the grantor and grantee, constituted one of the chief features of the property for manufacturing purposes, for which it had been used, and for which manifestly it was to be used by the purchasers. For the grantor to have removed it after the purchase, on the ground that it was personal property, would practically have destroyed all that was valuable, in contemplation of the purchasers, for the purpose of manu
It seems to be conceded by the defendants that, but for the bill of sale and chattel mortgage, this property would have passed by the deed and real-estate mortgage, so far, at least, as it was in the mill at the time of the sale; but as to that placed therein, after the execution of the deed and mortgage, a different rule is claimed to exist; but we have shown, upon the authority above cited, that fixtures which would pass by the mortgage if on the premises before its execution, would, as between the mortgagee and mortgagor, in like manner pass, if placed on the premises after the execution of the mortgage. Snedeker v. Warring, supra. What, then, was the effect of the bill of sale and chattel mortgage as to changing the character of this machinery from real to personal property ? In Voorhees v. McGinnis, 48 N. Y. 278, the owner of a saw and grist mill erected a substantial building, and placed therein a steam-engine, boiler, shafting, and gearing, whicli were constructed with especial reference to the place in which they were to be used, but without any intent on the part of the person making the improvement either of making them a part of the freehold, or of removing them in the future, and gave a real-estate mortgage upon the property. Subsequently the boiler and machinery were removed for the purpose of having them replaced by a new boiler and new machinery, and, while the new boiler and machinery were at the shop for repair, the owner of the mill gave a chattel mortgage upon them; and after the repairs were completed, and the mill was in running order, he gave another mortgage upon them and other machinery. After the repairs, and before the last chattel mortgage, he gave a real-estate mortgage on the premises, and the plaintiff acquired title under the foreclosure and sale on the two real-estate mortgages. The holders of the chattel mortgages removed the machinery covered by these mortgages. Held that, although the mortgagor had no special intent upon the subject, the facts disclosed tKat the boiler, engine, shafting, and gearing were permanent accessions to the freehold. Applying the principle of that case to the facts in this, there seems to be a mucii stronger reason for holding that this machinery and fixtures covered by the chattel mortgage were a part of the realty, and passéd under the real-estate mortgage. In this case the right of no third party is involved. The object of the parties manifestly was to confer upon the purchaser a valid title to all of this property, whether classed as real or personal, and a like object on the part of the mortgagor and mortgagee to create a valid security for the entire debt upon all of the property sold. Their misapprehension as to the legal
All concur.