56 So. 227 | Ala. | 1911
Appellee filed his bill to foreclose a mortgage which conveyed a lot ,in the city of Decatur by descriptive boundaries only. The principal subject of controversy between the parties is whether certain machinery put into a building upon the lot after the execution of the mortgage is to be included in the security. The question is doubtfully raised, but the parties have treated it as properly raised, and since its
Appellant borrowed money from the appellee upon the express stipulation that it should be used in the erection of a permanent structure or building upon the mortgaged premises. There is, of course, no contention that the mortgage does not cover the building thus erected. Nor will appellant understand that the stipulation to which we have referred above has been permitted to be influential in determining, the question whether the machinery was subsequently attached to the freehold in such manner and under such circumstances as to indicate an intention that it should become permanently a part thereof. This we say for the reason that while the intention with which a chattel is attached to realty is everywhere considered to be of
The machinery in question ivas bought by Grubbs from the Dodson Printers’ Supply Company, which company retained title as security for the unpaid balance of purchase money. Before the bill ivas filed that company had brought statutory detinue for the machinery, and it had been claimed and replevied by Mrs. Grubbs. The amended bill contains a prayer that the detinue suit be enjoined, and that upon final hearing-complainant be allowed to pay off and discharge the balance of the debt due to the Dodson Company, and that the building and the machines be sold as an entirety. To this part of the bill the appealing- defendants demurred and now complain that their demurrer was improperly overruled. The machines may be fixtures as between complainant and appellants, though, as between the Dodson Company and all others, they may be mere chattels. But the Dodson Company has made no complaint of this feature of the bill either here or in the court below. On the assumption that as between appellants and appellee the machines do form a part of the realty, as the bill alleges the case to be, it is not perceived how the relief here sought can prejudice any right of the appellants. The court of equity has power to make the complainant’s mortgage security completely effective according to the intent and purpose of the parties. If the Dodson Company were objecting to this feature of the bill, an entirely different question would be presented.
We are of opinion that the decree must be affirmed.
Affirmed.