53 N.J. Eq. 520 | New York Court of Chancery | 1895
Two questions were discussed — -first, whether or not the surrender of the lease by Dietrich to the complainant, and the release of the right of purchase, was valid and cut off Eowe’s interest; second, whether the stable and carriage-house are fixtures and not removable between landlord and tenant, or whether they are chattels capable of being removed as trade fixtures.
With regard to the first question:
It was settled by the casé of Hutchinson v. Bramhall, 15 Stew. Eq. 372, that a mortgage on a leasehold interest of this kind was good and sufficient if recorded as a chattel mortgage.
In that case it appears by the report in 13 Stew. Eq. 84, that there were two chattel mortgages, in one of 'which the only property mentioned in the schedule was “ the building known as McChesney & Hutchinson’s ice cream manufactory.” In the other mortgage the property described is mentioned as “machinery, the building and the leasehold interest.” Mr. Justice Yan Syckel, in commenting on these mortgages (15 Stew. Eq. 382), says : “ In legal effect these mortgages do not differ. They both cover the interest of McChesney & Hutchinson in the said building and land. The surplus in court stands in the place of such leasehold interest as the lessees had.”
Applying that rule here, I take it I must hold that the chattel mortgage, describing, as it does specifically, the buildings, and then mentioning “lease given by John Firth to William J. Morfilt for five years of the above-mentioned premises,” covers the leasehold interest, and having been promptly recorded, passed the title by way of mortgage in the lease to the mortgagee. It is true that the mortgage was executed not by Morfilt, the lessee, but by his sublessees, Dietrich & Losey, back to Morfilt to secure the consideration money on a sale by the latter to the former, but the sublease from Morfilt to Dietrich & Losey was in effect an assignment of the lease, for it was given for the precise unex
It seems to be clear enough that the effect of such an under-lease was that of an assignment of the whole term. Tayl. Land. & T.% 16 and note, and § 109. The attempt on the part of Dietrich and the complainant to destroy the lease and option of purchase by a surrender, must fail as against Morfilt as mortgagee, and Rowe, the defendant, as his assignee.
The second question is as to whether or not the stable and carriage-house must be considered as trade fixtures which may be removed at or before the end of the term. The case is on the border line, and the authorities are not in accord on the subject, but after careful examination of' such as are within my reach, I come to the conclusion that these buildings must be considered, at least upon the evidence submitted upon the hearing of this motion, as trade fixtures. The evidence as to the character of their attachment to the ground is not at all clear, and the affidavits give results rather than facts. But I find nothing to indicate that they are fastened to the ground in any other way than by placing them upon brick or stone foundations, to which they are not attached except by their weight. Be that as it majq they are not a part of another structure. The lot was vacant when the lease was executed, and the buildings were wholly erected by the lessee. They may be removed in toto and the premises remain in as good condition as they were before they were placed thereon. In this respect the case differs from that of an addition to a previous building or of a piece of machinery affixed to a previous building already on the premises, which cannot be removed without serious injury to the premises as they were at the time of the demise. I find nothing in the leases, or either of them, to indicate what was the intention of the parties in that regard. In that respect the case varies from that of Dean v. Hutchinson, 13 Stew. Eq. 83, in that there the lease was for twenty years, and the lessees agreed that unless they erected on the premises within four months from the date of the lease, “ building thirty feet by sixty, three stories high,” the agreement should be void, and that at the date of the expira,
Most of the cases cited by counsel for the complainant were those of mortgagor and mortgagee, or grantor and grantee, where a different rule prevails from that applied in cases of landlord and tenant. The question was carefully examined by Judge Harris, of the supreme court of New York, in King v. Wilcomb, 7 Barb. 263; and again, at greater length, in Dubois v. Kelly, 10 Barb. 495, and all the cases up to that date are there collected. In that ease the keeper of a hotel on leased premises erected a barn and shed built on a stone foundation, on a side hill, for use in the nature of a stable and barn in connection with the hotel. It was held they were removable as trade fixtures.
To the same effect is the case of Ombony v. Jones, 19 N. Y. 234. There the lessee of an inn erected upon the demised premises a ball-room resting upon stone posts. Judgment went against him, and the building was sold at sheriff’s sale, and it was held that the purchaser got a good title.
The leading case in this country is Van Ness v. Pacard, 2 Pet. 137. So a dye-house, seventy-five feet long, thirty-five high and thirty wide, and bolted into the ground, was held removable in Talbot v. Whipple, 14 Allen 177; andan ice-house in Antoni v. Belknap, 102 Mass. 193. And to the same effect is Ewell Fixt. p. 94 et seq., where all the cases are collected. The cases up to 1879 are collected in Tayl. Land. & T. (7th ed.) § 545.
I do not think, however, that it is either proper or necessary that the question should now be finally determined.
The order to .show cause, so far as it restrains the sale of the buildings and the property covered by the chattel mortgage, must be discharged, and the sale may proceed upon condition
