142 N.W. 259 | S.D. | 1913
This is an action of replevin brought in justice court, and seeking to recover the possession of one certain roll-top desk. Plaintiff claims to be the owner under and by virtue of a purchase upon foreclosure of a chattel mortgage, which covered “that certain elevator together with the scales, bins, machinery ,and other appurtenances thereunto belonging, located. * * Defendant claims to be the owner by purchase from the mortgagor, and the evidence reveals the fact that, whether the owner or not, he was, at the time action was brought, holding under possession received byr delivery of the property to him by the mortgagor. Judgments in justice court and upon a new trial in circuit court were in favor of the defendant. This appeal is from the latter judgment,' and from, an order denying a new trial.
But, as was well said in the case of Frey v. Drahos, 6 Neb. 1, 39 Am. Rep. 353: “It is, however, doubtless true that the word is frequently used in a more enlarged and comprehensive sense, and when it can be gathered from all the' attendant circumstances that it was so understood and used -by the parties, a corresponding effect should be given to it in the interpretation of a contract.” Thus it has been held that, under the term “appurtenance,” corporeal articles of personal property passed under conveyance of land or building's. But it is not all property situate upon land or within buildings that will pass as an “appurtenance” to such land or building; it must still be a thing which in its nature agrees with the use to which the building is put; in other words, it must agree in its nature with the thing whereunto it is appurtenant. Thus, in the case of a gram elevator, those tools and machinery therein contained and used, which from their nature are proper and convenient to be used in connection with the buildingdn the handling of grain in said elevator might in a proper case be held to be “appurtenant” to such building; it could not, however, be held to cover an article of personal property having nothing to do with the handling of grain — the purpose for which the building was • constructed. 2 Am. & Eng. Ency. Law 520; 3 Cyc. 565; Jones on Chattel Mortgages (5th Ed.) § 136; Ottumwa Woolen Mill Co. v. Hawley, 44 Iowa, 57, 24 Am. Rep. 720; Frey v Drahos, 6 Neb. 1, 29 Am. Rep. 355; Riddle v. Littlefield, 53 N. H. 503, 16 Am. Rep. 388. It is therefore clear that the term “appurtenance” did not cover the roll-top desk.
The judgment and order are affirmed.