38 Iowa 269 | Iowa | 1874
— I. The injunction is sought upon the ground that the mill is real estate.
In November, 1869, Lamb sold the mill to A. J. Melvin, and took a chattel mortgage thereon to secure three promissory notes executed for the purchase money.
In February, 1870, the plaintiff bought the mill of Melvin. At that time the three notes executed by Melvin to Lamb, and secured by the chattel mortgage, were unpaid. When Den-ham traded for the mill, he said he expected to pay these three notes, and he did pay the two which first matured. Lamb sold the other note to the defendant, Coojrer. lie was proceeding to sell the mill as personal property, under the chattel mortgage, when the injunction in question was sued out. Over the mill is a shed, such as is usually used to protect a saw mill, built upon posts which are set on blocks in the ground. There is a brick furnace around the boiler to retain the heat. The shed is temporary and built for the protection of the mill, and both shed and mill can be moved without any injury to the real estate. The mill has been sold.
Under the circumstances it is clear to us, that as between the mortgagor and his grantees, and the mortgagee and his assigns, the mill must be regarded as personal property.' See 2 Kent’s Commentaries, eighth edition, pages 409 and 410,-and cases cited; also Sowdan & Co. v. Craig, 26 Iowa, 156.
II. It is claimed that the moi’tgage cannot be enforced, because of the purchase of the mill and lease by the plaintiff Denham.
When the lessor purchased the lease, and the particular estate and the fee united in the same person, the lease, so far as any future results may flow therefrom, became extinguished. But this transaction could not divest an outstanding interest acquired before in good faith. Eor the protection of such person, if necessary, the lease will be kept alive. See Varmiee v. Bergen, 16 Iowa, 555.
The obvious answer to this is that Lamb was before that time an innocent holder of the note and mortgage, and that Cooper took his place and is subrogated to' his rights. The injunction should have been dissolved. ■
Reversed.