*1 As there is under Section 444 áuthority no for a statutory contest of the election county of a commissioner there is under Section 416 authority no a statutory contest of the nomination of a county commissioner in a primary election.
A prohibition writ of awarded. J., C.
Terrell, Whitfield, Ellis, Strum, Brown J., J. concur. Buford, a feme Greenwald, Amelia v. John M. sole, Appellant, Appellees. et al., Graham, En Banc. Opinion filed October *2 Appellant; Morehead, for Chas. A. A. Walder. Kassewitz, Appellee Price, Kehoe &
Price, transcript appears from the Commissioner.—-It Andrews, prop- title holder of real Company, Inc., Tinto had been final of foreclosure upon which a decree erty, moving theatre build- picture entered, removed duly furniture fixtures and considerable ing thereon located which were the master’s sale days prior to four about building by respond- in another theatre bought and stored sale a bill of purchaser, who obtained Walder, ent Chas. $1,047.00 exchange owed for the sum of from the owner com- The was bid holder. him the title for' foreclosure sale at the Greenwald, Amelia plainant, less than $500.00 approximately which was an amount decree. of the final amount total pe- a sworn trial court, was issued Order affidavits, requiring supported complainant tition of appellee, purchasers of said fixtures and furniture, either return or why show cause said should not delivered cause, master in prop- said said erty being designated particularly more as follows: boxes switches, plates,
All electric switch switch formerly appliances used in and electrical said theatre. lobby mirrors. All ornamental large bells. lights. Exit boxes
Box office. your equipment possession now
And all other Rialto Theatre of Little was removed from the Florida; River, appellee order Chas. Walder filed to said
Pursuant money purchase of a mort- foreclosure was answer the realty only the and did not encumber encumbering gage building the and that he was furniture in fixtures or the knowledge complain- value and to his purchaser on joined, property. The issue had no interest said ant the chancellor answer, heard-before petition and was said and an order was parties, both adduced upon evidence the quashing and Walder from the rule discharging issued cause. order to show adjudicated is. major question that the to be appears
It mortgaged property fixtures removed the the whether under the as to become nature and character were of the security for the said additional law and the facts appurtenances. and hereditaments part the tenements, of affirma- the properly answered question If this removed, then of items tive as to substantial Likewise, error. respondent was dismissing the order the adversely raised issues determine other this would also (1) jurisdiction to the trial court as to the order of cause,. rule to- show respondents to property property “prior to master’s (2) disposal being complete- to there full (3) sale,” dismissing remedy respondent The order at law. quashing rule show cause is as follows:
‘‘ upon petition This cause came on to be heard of complainant directing Waller, for an order Chas. appear and A. Theatre, Tivoli Wallerstein Inc., why prop- the court and show cause certain before erty alleged by complainant the lien be covered complainant’s and which severed was freehold, peti- from the should not be delivered to tioner, upon the rule to show cause issued in ac- prayer bearing with the of said petition cordance April 5, at 11:00 M., date o’clock A. the said having respondents by on rule been served the Sheriff County day April, 1928; of Dade on the 5th also respondents; and the answer court heard having part evidence adduced on of com- plainant respondents; and also on the after argument being fully of counsel and in' the advised *4 premises, jurisdiction it has not finds that Court
“The subject mat- property, nor of the respondents to-wit: following, for reasons petition, of the ter parties original to were not Respondents “1. they purchasers prop- of the suit, nor were foreclosure erty sale. at master’s acquired title to respondents appears
“2. It by the property said to be covered personal certain mortgaged sale before lien of the chancery. the master premises in the bill of sale “3. That of the articles listed some mov- respondents appear to be filed evidence ar- etc., while other fixture, and not a able fixtures, tides, etc., may such as the electric have been realty, a but which party was severed and dis- posed of to respondent prior the owner fee of the to the master’s sale. complainant
“4. full, Because complete has adequate remedy at law. IS, THEREFORE,
“IT ORDERED, ADJUDGED AND DECREED that respondents, Waller, Chas. Inc., Theatre, Wallerstein, Tivoli and A. hereby discharged
are cause, the rule show .from respondents and that go day, the said hence without complainant’s petition and that the for the rule be dis- missed, and the rule or order show cause ’’ hereby quashed. is same is
It observed that court did not determine whether so, if any, and what articles were “movable ‘‘ ’’ fixtures, not nor what other articles such electric fixtures, etc., realty,” have been of the disposed respondent were servered and of to the owner fee, Company, Tinto Inc. judgment There is no final major as to the issue in case, determining which is a factor as to all other issues raised, determining that issue as to articles so removed petitioner favor of the ipso1 to show cause would facto questions against all ap- determine other contentions of jurisdiction pellee,'Walder, fixtures, as to respondent, etc. generally
“The term ‘fixture’ used in reference to originally chattel, personal some which has been actually constructively affixed either the soil legally or to a part *5 itself some structure of such soil. an denoting It has been defined as article which was which, by being a chattel, physically once but annexed accessory it and has become realty, or affixed to the something so at- signifying it;of or as part parcel and a being, become, for the time realty as to tached to a contradistinguished from freehold, as part of for use a freehold chattel; something annexed to mere a something annexed to therewith; in connection injury to without cannot be removed that it freehold 1058, 11 R. L. Sec. 2. the freehold.” C. decisions, both general course of modern
“The the common courts, against is and American English is the cri- mode of annexation law doctrine slight temporary, or immovable terion, whether and declaring things all in favor of permanent, realty with a to the which are attached fixtures employed. it is held purposes view to the for which or recognition of formulation and has led to the This applied in determin- three tests which ing particular namely, first annexation to the case, constructive; second, adapta- realty, either actual or purpose to which that application tion or use realty appro- to which it is connected part of the per- ; third, intention make the article priated 1059, 11 R. L. freehold.” C. manent accession to the Section
In v. Broward, Seedhouse Fla. 523, 16 R. So. 425, this Court said: allegations think
“We of the bill to the effect engine, machinery that the boiler and mentioned were put upon mortgaged the land appur- and became an realty part tenant thereto as fix- became thereon, security tures for the com- plainant claim, ’s put are sufficient to the defendants to their answer to meet it. If their annexation to the'
824 stamp
land was made under
circumstances as to
such
fixtures,
no dif-
them with
it makes
the attributes of
land,
they
placed upon
were
subse-
ference
quently
to the execution of the
as between
notice,
mortgagor
persons
mortgagee
with
subject
mortgage
became
to the lien of the
with-
any special
out
being
mention of them
in
made
mortgage”
Citing
Ency. Law,
8 A. & E.
seq;
et
Mortgages (4th
on
Ed.),
seq.
Jones
Sec. 428 et
See
Marzyck,
also Brown v.
The decision further held that: “In establishing given thing the fact whether is upon land, or not fixture the intention of the in it placing gathered owner there, to be from his declarations, character, and from the relations and purposes property, important element, is an controlling importance.” many sometimes Citing cases.
The evidence taken before the chancellor the issues respondent shows Chas. Walder took the with both constructive and actual notice of mortgage being premises. foreclosed on the It would also appear that it must have been the intention place of the owner to these “fixtures,” distinguished from walls “furniture,” permanent the theatre as improvements. fixtures The building appears to have been moving constructed as a picture premises theatre. The owner of bought covered original mort- gagors place position would owner same improvements to added mortgagors, as the with refer- ence issues here raised.
‘‘ mortgagor bought a the interest of If one who has ques- owns, which he the it a chattel attaches to land deter- subject to the tion this is whether annexed applies to articles by rule that mined the same 41 A. L. 616. by mortgagor.” R. the general lays following authority down also the The same rule: has been an- purchases a chattel which who
“One subject mortgage previ- ato to so as to be nexed land lien subject to the ously on land takes it the executed attached, is not once it has mortgage. This of lien, fixture, the article by of the terminated the sale removed from the by it which is covered cannot 41 mortgagee.” consent of the premises without the cited. A. L. R. 621. See cases there following rule: authority also states the The above land a mort annexed to that chattels “The fact fix commonly as trade gagor known be what are them, mortgagee right not affect the tures does ” 614, citing security. R. Seed 41 A. L. part as his that general rule supra. “It is a Broward, house v. mortgagor of real any owned chattel which is which, of the after the execution estate, realty it becomes there so that he annexes to though not subject mortgage, even of, becomes 601; 249, 41 42 L. R. C. J. mentioned therein.” A. 1893. Sec. jurisdiction question
As whether the court had respondents cause, rule and the to show Elizabethport Cordage case v. this Court held Co. purchaser pen- Whitlock, 190, 255, 37 20 R. Fla. So. judgment or lite is bound decree rendered dente purchase against party whom he makes the 826
much, though party judgment he had been a himself. decree In another case it was held that: ‘1They suit, risk take and are result necessary therein, concluded the decree and it is not parties should made thereto. is the Such ’’ pendens. Thomas, doctrine of lis Leuders v. 255; 633, 35 Fla. R. 48 17 So. A. S. R. 518, Intermedi ary Corp. McKay, Fin. v. Fla. R. So. *8 pendens duly A lis was filed in the foreclosure suit here and at time of the of the severance the involved, building merged from the it was into final decree, which all building would include in the considered under distinguished as fixtures from law furniture. There were several typewriter, articles furniture such as office desks, filing fans, cabinet, etc., might electric con- be sidered any furniture which could removed without in way marring building usually are not attached thereto, nor usually appurtenances classed as improve- in ments foreclosures.
The order of the chancellor should be with reversed direc- determining enter an tions to order what articles removed building contemplation were fixtures within the by the law and mortgage; covered and such finding to that those direct articles which are so found sub- ject any, to the if general to the returned mas- mortgage, ter disposition according law, for and that those articles coming designation by under ap- not said be retained Chas. Walder. pellee, having Curiam. —The record this been con- cause Per Court, foregoing opinion
sidered prepared 14553, Chapter 1929, under Acts adopted Court opinion, as its considered, ordered it and decreed same is be and the the chancellor the order of Court that order deter- to enter an directions hereby reversed with fix- building were articles removed from mining what law and covered contemplation of the tures within the finding to direct those mortgage; upon such any, if subject thé are found articles disposition according master be returned desig- coming under said articles not and that those law, appellee, by the Chas. Walder. nation be retained J., Strum, C. Ellis, Brown Whitfield, Terrell, J., J. concur. Buford, Error, D. L. W. W. Whitehurst, v. Hall Plaintiffs Error. Florida, State Defendant En Banc. Opinion filed October *9 Error; Whitehurst, for Plaintiffs in W. W. Boswell, Attorney, Defendant Jr.,
G. A. State’s Error.