14 Colo. App. 21 | Colo. Ct. App. | 1899
On June 19, 1890, Mary E. Fisk sold and conveyed to John McCain, Louis F. Groth and Ferdinand B. Becker a number of lots in Fisk’s addition to the town of Fairview, in Arapahoe county, for the sum of $23,000. Of the purchase price, they paid $3,000 in cash, and executed four notes for the residue, — one for $2,000, due September 12, 1890, and three for $6,000 each, due respectively on the 12th day of June, 1891, the 12th day of June, 1892, and the 12th day of June, 1893, all with interest from date. The payment of these notes was secured by a deed of trust upon the premises sold, which was duly recorded on the 23d day of June, 1890. After the execution of the trust deed, McCain, Groth and Becker placed upon the premises three brick sheds, a seventy-five horse power engine, two boilers, a brick machine, and certain other machinery and apparatus, to be used in the manufacture of brick. Before this machinery Avas placed upon the premises, these parties were indebted to the People’s Na
The answer admitted the placing upon the premises by McCain, Groth and Becker of the articles of property described in the complaint, but denied that they were placed there as permanent fixtures or improvements, averring that they were personal property, and were put upon the land solely for the purpose of carrying on the business of manufacturing brick, and were at all times subject to removal. The answer also averred that McCain, Groth and Becker were partners, engaged in the manufacture of brick, and that the land was sold to them by the plaintiff, and was obtained by them for the purposes of carrying on their trade and business as partners; and that their indebtedness to the bank
The evidence was that the boilers were placed on brick foundations, sunk in the ground, and were walled in with brick; and that the engine and brick machine were also laid on brick foundations, sunk in the ground, and attached to the foundations by iron rods or bolts. All of this machinery was massive and heavy, and the other apparatus was connected with it by proper appliances. The machinery was enclosed in buildings erected by McCain, Groth and Becker and was adapted to, and used in, the manufacture of brick. The brick was to be manufactured out of clay from the land sold by the plaintiff. At the time of the foreclosure of the chattel mortgage, about 5,000,000 brick had been made, and it was estimated that there was enough clay upon the land to make 100,000,000. In making these brick the land was excavated, in places, to a depth of twenty-two or twenty-three feet, and on portions of the ground the clay was sixty feet deep. In August or September, 1890, Mr. Groth, for himself, McCain and Becker negotiated a loan at the People’s National Bank of $5,000, stating that they wanted the money to buy a boiler, engine and other machinery, and proposing to give the bank a chattel mortgage on the property whenever the bank might ask for it. Of the money loaned, $2,000 was placed to their credit first, afterwards $2,000 more, and subsequently the remaining $1,000. They drew checks against this money,
Mr. Lawrence, an officer of the bank, testified that about a week before the sale took place, he had a conversation wfith Archie C. Bisk, on the subject of the proposed sale. Mr. Fisk was the trustee named in the trust deed. Mr. Lawrence said he was told by Mr. Schrader that the bank had been notified by Mr. Bisk that he objected to selling the property; that he (witness) immediately looked Mr. Fisk up, and explained to him the circumstances under which the money was loaned, and the chattel mortgage taken, and that Mr. Fisk said he had not understood the matter and remarked: “ Mr. Lawrence, if that is a fact, I don’t think I ought to disturb you; if the way you stated to me, which I have no reason to doubt, I don’t think I ought to disturb you; go ahead, Mr. Lawrence, I don’t think I will give you any trouble.” The
There was evidence from which, if the case made by the plaintiff entitled her to a recovery, the injury to her security might be estimated. The judgment was against her, and she brings error.
We have held that an action maybe maintained by a mortgagee, or the beneficiary in a deed of trust, for an injury done to the security. Vaughn v. Grisgby, 8 Colo. App. 373. This suit was, therefore, properly brought.
Whether, as between the immediate parties to the trust deed, the articles of property in controversy were so annexed to the real estate as to become part of it, depends upon the character of the articles, the manner of their annexation, the uses to which they were to be applied, and the intention with which they were annexed. It appears from the answer that the purchasers of the land were partners in the business of manufacturing brick, and that the land was bought by them to be used in carrying on their business. The machinery was heavy and massive; it was such machinery as is necessary in the manufacture of brick; it was purchased to be used upon the land; it was laid upon and fastened to brick foundations sunk in the ground; the appendant articles were appliances to be used in operating the machinery, and during the time the business was carried on, all the machinery and appliances were devoted to the uses for which they were placed upon the land. In purchasing both the land and machinery, the copartnership had the same object in view, and they were to be used together for the same purpose. To carry on their
The machinery was placed upon the land after the trust deed was executed; but that fact does not affect the question whether it became an accession to the real estate. If it did, and that it did we have no doubt, it was incorporated with the land; the two became an entirety, and,- together, constituted the plaintiff’s security. We have no hesitation in expressing the opinion that as between the plaintiff and the grantors in the trust deed, the property in controversy was unified with the real estate, and that upon default in the payment of the debt secured, she was entitled to resort for indemnity to the land and fixtures together. Roseville A. M. Co. v. Iowa G. M. Co., 15 Colo. 29; Climie v. Wood, 8 Exch. 256; Winslow v. Merchants Insurance Co., 4 Met. (Mass.) 306; Hopewell Mills v. Taunton Savings Bank, 150 Mass. 519; Feder v. Van Winkle, 53 N. J. Eq. 370; Cunningham, v. Cureton, 96 Ga. 489; Fifield v. Farmers' National Bank, 148 Ill. 163; Jones v. Bull, 85 Tex. 136; Voorhees v. McGinnis, 48 N. Y. 278; Porter v. Pittsburg Steel Co., 122 U. S. 267.
The intention with which the machinery was placed upon the ground is apparent from the general facts; but this case
Having concluded that as against the plaintiff the makers of the trust deed could lay no claim to the machinery, we shall now consider the situation of the holders of the chattel mortgage, and the purchasers at the chattel mortgage sale, in relation to the property. Whatever rights they may have had, were derived from an oral understanding between the mortgagors and the mortgagee at the time of the contraction of the indebtedness to the bank. It is contended on behalf of the plaintiff that the promise of McCain, Groth and Becker, when they borrowed the money, to secure it by a mortgage on the machinery at some future time if so required, created an equity superior to that of the beneficiary in the trust deed, and entitled the mortgage which was finally given to priority over the plaintiff’s lien; and counsel support their position by reference to a number of authorities, some of which we shall specially examine. In Tifft v. Horton, 53 N. Y. 377, the plaintiff manufactured the machinery for a Mrs. Brown, under a written contract. By the terms of the contract the machinery was to be put up and used in an elevator Mrs. Brown was building, and she was to give for a portion of the purchase price her promissory notes secured by a mortgage on the machinery. The machinery was completed according to the contract, and, while it was still in the plaintiff’s shop, the mortgage was given. The instrument provided that the machinery should remain personal property until the notes were paid, notwithstanding the manner in which it might be placed in the elevator, and authorized the plaintiff, in case of default, to enter the elevator and take it away. The
But, giving the decisions which have been urged upon us the utmost effect which their language will warrant, we do not see how the _ present case can be brought within them. Either the title to the property had never passed out of the vendor, so that he was entitled to follow it wherever it might be found, or before it had left his possession, lie had secured himself by a chattel mortgage upon it for the unpaid purchase price, so that, as to him, it remained personal property until the debt was paid. Whether he claimed as conditional vendor or mortgagee, he had a valid legal interest in the property, which could not be divested without his consent. Nothing like that appears here. The holders of the chattel mortgage never were the owners of the machinery. It never was in their possession. The indebtedness to the bank was contracted, apparently, to enable the borrowers to pay, wholly or partially, for this machinery. The money was placed in their general account, which included other moneys belonging to them. How much, if any, of this particular money, they used in paying for the property, is uncertain, and is as unimportant as it is uncertain. There was no contract which entitled the bank to interfere with any disposition which they might conclude to make of the machinery. There was an offer or a promise which amounted to nothing more than an offer, by them, to give the bank a mortgage upon it; but until there was an acceptance of the offer, there was no eon-tract, and the offer was not accepted until the bank demanded the mortgage a year afterwards, and then, the acceptance was too late. In the mean time, McCain, Groth and Becker, the owners of the machinery, in the exercise of their un
The remaining question is whether the plaintiff is estopped to assert her rights by reason of the conversation between Lawrence and Archie C. Fisk. Mr. Fisk was the trustee who held the title to the real estate as security for the debt to the plaintiff. By the terms of the trust deed, he had authority to advertise and sell the land, in case of default by the makers of the notes; to execute a deed to the purchaser ; and to apply the net proceeds in discharge of the debt. The deed gave him no further power, and there is nothing in the record to show that any additional power was otherwise conferred. As far as we can see, the only agency he possessed was that created by the deed. He had, therefore, no authority to make any outside contract in relation to the property. Whatever assurance he may have given the bank that the plaintiff would make no claim upon the machinery, was not binding on her, and, as against her, was not an estoppel. But even if the fact had been otherwise, the language which the witness put into his mouth, was not the assurance which the defendants pleaded. The answer alleged that they were induced to proceed with the sale by the assurance of the plaintiff, through Archie O. Fisk, that she would make no further claim upon the property, and that but for such assurance, there would have been no sale. But the proof fell far short of the averment. »As to what Mr. Fisk said we accept the testimony of .Mr. Lawrence, rather than that of Mr. Fisk, because the court found for the defendants; hut, considering as a whole the language of Mr. Fisk as it was given by Mr. Lawrence, and in order to ascertain what Mr. Fisk intended by it, it must he so considered, we find in it no promise that the plaintiff would
We believe that the articles of machinery were fixtures; that the plaintiff’s deed of trust covered them; and that their detachment from the land was an impairment of her security.
The judgment will therefore be reversed.
Reversed.