13 Mich. 23 | Mich. | 1864
Defendants in error brought an action of trover for the conversion of a steam engine and its appurtenances, which they claimed under the following circumstances; Francis A. Hall mortgaged certain lands in Batavia, Branch County, amounting to 572 acres, to one Hiscock, October 22, 1856, for $4,000 ; and this money was borrowed under a verbal agreement that Hall should erect a saw mill on the premises. On the same day, Hall contracted with defendants in error to build and put up the engine in question, ho agreeing to put up a suitable mill frame and engine-house to receive it, and upon its acceptance to execute back a chattel mortgage on the engine, and a mortgage upon the land, which was already subject to the Hiscock mortgage. It was expressly agreed that the engine and appurtenances should continue to be the property of defendants in error, until they should
At the Common Law, personal property, as a general rule, never lost its identity in realty, unless so closely incorporated with it that it could not be separated without injury to the freehold. And even under the peculiar preference given by the English law to trade over agricultural improvements, buildings erected for farming uses,, although resting upon foundations of masonry, were not considered as real estate as against the tenant, if capable of being removed without injury. In Wansbrough v. Maton, 4 Ad. & El., 884, it was held expressly that a barn resting upon a masonry foundation, and capable of removal, was no part of the freehold, and was therefore, in all'* respects, the chattel of the tenant who built it. This case is based upon a former decision in Rex v. Otley, 1 B. & Ad., 161, where the question did not arise between landlord and tenant, but was decided upon the nature of the property itself. There a person owning land upon which was a windmill, consisting of a wooden mill and its machinery, resting upon, but not fastened to, a brick foundation, leased the land and the mill to a tenant. The rental value of the whole property was thirty pounds, of which more than twenty pounds represented the rent of the mill. It was held that the mill was no part of the realty, and that the tenant could not be regarded, therefore, as holding a tenement of the value of ten pounds.
Li regard to erections made by tenants for purposes of trade or manufacture, an exception was early raised in their favor, allowing them to remove erections made
There can be no dispute but that, in this country and in England, many cases have been decided, (and we are not disposed to question them propriety,) which hold that personal chattels, although severable without material injury to the freehold, may yet pass as realty if apparently suitable and actually designed to be permanently attached to the land. These cases are many of them founded upon the change of business, whereby motive power, which formerly depended on the freehold itself, by the improvement of water privileges, has now become dependent on steam engines, which are personal chattels. The doctrine that held all the machinery of a
But we think that, with very few exceptions, the authorities agree that there is no inflexible rule on the subject, and' that every presumption which might arise In the absence of an agreement may be defeated by 'the agreement. In Wood v. Hewett, 8 Q. B., 913, the whole doctrine is put upon an intelligible and sensible basis. In that case, a fender, or water gate, was built in masonry upon the lands of a. party, who removed it, and who was sued in trespass by the proprietor of a mill upon other lands, on the ground that it was his property. The defendant claimed that it was a part of his freehold. Lord Denman said: “ The question is whether, because the fender in this case had been placed on the defendant’s soil, it became his property as a necessary consequence of its position. I am of opinion that such a consequence never follows of necessity where the chattel
In Mot v. Palmer, 1 N. Y. Rep., 564, it was held that rails built into a fence, with the understanding that they might be removed, did not pass to the vendee,' although purchasing' and taking possession without notice. And many cases are cited to show that ownership of
The case of Ford v. Cobb, 20 N. Y., 344, in some of its principal features, resembles the case now before us. Salt kettles, and grates, and arch fronts were purchased to be set up in brick arches, and a chattel mortgage was given back reciting these facts, and was duly recorded. The land was then sold to a purchaser without notice. It was held that the kettles never became realty, and that the chattel mortgage title must prevail. The case of Godard v. Gould, 14 Barb. S. C. R., 662, was entirely similar in principle.
There are cases in some States, particularly in Massachusetts, which are not consistent with these decisions. But when we consider the original common law doctrine, requiring an actual incorporation into the freehold, and the peculiar rules of policy which have since allowed articles which are personal in their nature to be annexed by construction, we think that rule is -the safest which allows personalty to continue as such until changed by design into realty.
So long as a chattel may be removed as such from real estate, and is in a condition to be removed without material injury to the freehold, it is difficult to see by what process the title to it can be divested from its original owner without some sale or transfer, or some
It is claimed, however,, that, by the rules of law, fixtures made after a mortgage belong to the mortgagee, and that the mortgagor has not such an estate as will authorize any one to make an agreement with him touching the use of the land. Under the English rule, which gives the mortgagee an immediate right of possession, the mortgagor cannot give others a right he does not possess himself; and should he erect improvements which could not be ' severed without injury, they must undoubtedly continue on the premises. Improvements made by him would be presumed to be made for the benefit of the inheritance. But we think those cases which make this presumption absolute, not only as against him, but as against other owners of chattels placing them on the premises, go beyond reason, and divest property without any necessity or propriety, when its nature has not, in fact, been changed. — Waterfall v. Penistone, supra.
Neither do we consider the position of a mortgagor the same now as it was before the statutes forbidding possessory actions against him. Cases have been cited to
The mortgagor, therefore, until actual foreclosure, is in possession by right, and not by sufferance, and may make such arrangements for the use of the property as any other person could during his term. The machinery never became any part of the realty: Crippen was not misled by appearances, and had no right to dispose of it.
It is also objected that defendants in error are barred of their claims because they were parties to the foreclosure suit. But as they had mortgages on the real estate, they were proper defendants on that ground. We cannot presume the bill in that case was filed for any other purpose than a simple foreclosure. The ordinary allegations of a foreclosure suit would not authorize a decree declaring these chattels to belong to the realty. The decree, under ordinary circumstances, would simply allow the land to be sold, leaving all questions concerning its appurtenances to be disposed of as they should •arise. To determine them in advance would require
Judgment should be affirmed, with costs.
Martin Ch. J.:
: "Whatever may be the rule of the common law respecting fixtures, in the absence of any agreement of' parties, it is well settled at this day that the contract of parties will fix • the character, and control the disposition of personal property, which, in the absence of a contract, would be held to be a fixture; in other words,, the parties interested may control the legal effect of any transaction respecting such property by express agreement.. Such was done in the case before us. The property which is the subject of this litigation was only erected "upon the premises upon the agreement that it- should be subject to a chattel mortgage . for its purchase price. By this the parties kept it separate from the realty, and it never became part of it. Such mortgage was given, and kept good up to the bringing of this suit, and all the evidence shows that all the parties through whose hands the property has been transmitted, knew of such original agreement, and of the existence of such mortgage; and, as I think, it shows further, that the land was purchased by all with this property excluded. Crippen certainly never purchased it, for he bought with full knowledge of the property, and the claims of the defendants in error to it. His ownership of the decree does not aid him, for he bought the decree with such knowledge, and could not hold it, or claim under it with any rights superior to those from whom he purchased. His purchase at the sale barely confirmed his-title to the land, as he acquired it by purchase of the. decree — nothing more.
The judgment of the Court below is affirmed, with costs.