6 Neb. 1 | Neb. | 1877
The vital question presented in this record is whether the property in dispute was included in ■ the mortgage given by the Grange Company to the-Milburn Wagon Company.
The description in the mortgage of the property conveyed is, “ One frame grain elevator warehouse situated on the ground of the Sioux City and Pacific R. R. Company east of their side track, nearly opposite the pas
If the property in controversy was covered by this description then the judgment of the district court is right and should be sustained, but if otherwise, it is wrong and must be reversed. The following is a list of the property, viz.: One ten-horse power engine and boiler complete, one grate bar, five wrenches, one gauge cock, one pump and pipe, one rubber belt, four bars of iron, one engine house, one Fairbanks scale complete, and one office ten by twelve feet in size, none of which articles was either in, or attached to the warehouse mentioned in the mortgage.
But it is claimed on the part of the defendant in error that, although this property was not specifically mentioned in the mortgage through which he derived his pretended title, yet it was covered, and the title passed from the Grange Company, by force of' the words “ appurtenances thereto belonging,” and it was upon this construction of the instrument alone that he recovered in the court below.
Not only was none of this property in, or attached to the warehouse, but, excepting the rubber belt, was located and used not less than fifty feet distant therefrom. In fact, as shown by the testimony, the office building and Fairbanks scale were at least one hundred feet away, and were used by the Grange Company in the prosecution of the other business in which they were engaged as well as in that of handling grain. The rubber belt was the means of connecting the engine with the machinery of the warehouse when in operation; at other times it was taken off and laid aside.
No case was cited by counsel for the defendant in error which goes so far as to hold that property of this
What is an appurtenance? It is said that “The term is commonly confined in law to the purely incorporeal hereditaments that are commonly annexed to lands or to houses, and may as well include common as any other right.” Bouvier’s Law Dictionary, 29. Lister v. Pickford, 34 Beav., 576. And in Harris et al. v. Elliott, 10 Peters, 25, is mentioned a saying of Lord Coke, that “ A thing corporeal cannot properly be appurtenant to a thing corporeal, nor a thing incorporeal to a thing incorporeal.” 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. But here we have no fact or circumstance to indicate that the parties intended to use it in any other than its purely legal sense. It is not at all probable that the Milburn Wagon Company would have omitted a specific mention of the office building and scale, situated at least one hundred feet from the warehouse, if it had been the understanding that they were to pass by the deed. Nor is it reasonable to suppose that the engine and engine house of the value of several hundred dollars, añd more than fifty feet distant, would have escaped particular mention, had it been intended that they should be conveyed. We feel bound to hold, therefore, that the property in controversy was not, in law, appurtenant to the elevator warehouse, and did not pass by the mortgage to the Milburn Wagon Company.
It is also assigned for error that the court excluded
There is no doubt that the rule governing the admission of evidence in explanation of written instruments, or, perhaps more properly, to connect the instrument to the precise subject upon which it was intended to operate, is substantially as claimed by counsel for plaintiff in error. But there was nothing in the case as made by the defendant in error which called for this sort of proof, for under no circumstances that we can conceive could this property be treated as appurtenant to the warehouse. And, besides, the questions by which it is said this proof would have been elicited were very clearly objectionable, "and we perceive no error in the rulings of the court in this respect.
On this point the witness Karl was asked, “What particular property the mortgage was to cover?” This was very properly excluded. There was no ambiguity in the mortgage as to the property which it purported to convey, and the question clearly called for incompetent testimony.
Again, the same witness was asked “ What were the appurtenances to the elevator warehouse at the time of giving said mortgage?” This, too, was incompetent. It in effect called for the opinion of the witness on a question which it was the province of the jury to decide. It was the office of the witness to detail facts and circumstances within his knowledge showing the situation of the property, and its exact relation to the warehouse, leaving to- the jury, under proper instructions, the determination of the question whether it was appurtenant or not. These remarks will apply with equal force to each of the other questions in respect to which it is claimed the court erred.
Reversed ani* remanded.