78 Ind. 521 | Ind. | 1881
Peyton Johnson and wife, in February, 1877, mortgaged land, including a mill and its appurtenances, to Kennedy and Robertson, to secure several notes payable to-them, and made by Peyton Johnson. These notes became-the property of the appellant Hamilton, by endorsement.
The same grantors, in February, 1878, mortgaged the same-land to the appellant Hamilton, to secure a note payable to him and made by Peyton Johnson.
Hamilton brought suit upon the notes and mortgages and obtained a judgment of foreclosure against Johnson and wife.-
Thereupon the appellees, Huntley, Holcomb and Heine,, were made defendants, and they filed a cross complaint against-Hamilton, Johnson and wife, and Kennedy, alleging that after the execution of said notes and mortgages, and before suit was brought thereon, they delivered to Peyton Johnson a middling purifier, and a-bran duster, and a brush machine, to be put by him in said mill and used on trial, and, if found satisfactory, then within sixty days after such delivery Peyton should notify them of his acceptance of the machines and give
The prayer of the cross complaint is, that the said machines be excepted from the decree of foreclosure and declared to be the property of the cross complainants, and that said Hamilton and the Johnsons and Kennedy be enjoined from claiming any right to the machines, or the use thereof and for all other proper relief.
Hamilton filed a demurrer to this cross complaint, and the same was overruled.
The said Hamilton, Minerva Johnson and Kennedy answered the cross complaint jointly, alleging that the said land and mill belonged to said Minerva in fee simple; that the mill is a three-story brick building, on stone foundations eight feet deep, with a steam engine and boiler in a brick and stone bed, and permanently attached to the building and machinery; that the machinery is fastened to the building permanently by rods, bolts, pulleys, bands, screws and other fastenings; that the same was notplacedin saidmill for trade, butto be usedand enjoyed permanently as a part of said real estate; that said Peyton held said property as tenant of said Minerva, from Feb
The cross complainants filed a demurrer to this answer; said demurrer was sustained, and the respondents declining to answer further, judgment was rendered against them upon the ■cross complaint, that the said machines were the property of .said Huntley, Holcomb and Heine, and were not covered by .said mortgages or by the said decree of foreclosure.
From this judgment the said Hamilton, Kennedy and Peyton Johnson appealed; the said Minerva Johnson refused to join in the appeal; her name is stricken from the record.
The appellants assign errors:
1st. Overruling the demurrer to the cross complaint.
2d. Sustaining the demurrer to the answer to the cross complaint.
Personal property may be annexed to the freehold so as to
At common law, ordinarily, subject to some exceptions, as between landlord and tenant, in favor of trade, whatever is annexed to the freehold becomes part of it, and can not after-wards be removed, except by him who is entitled to the inheritance. VanNess v. Pacard, 2 Pet. 137, 142.
In the United States, the 'modern cases exhibit a conflict of opinion as to fixtures.
In Connecticut, it was held that a simple annexation to the realty is not sufficient, and that, to become a fixture, the chattel must be so annexed that an injury to the freehold will result from the mere act of removal, independently of the subsequent want of the thing removed. Swift v. Thompson, 9 Conn. 63. In Maine, it was held that where machinery is essential to the purposes for which a building is employed, it must be considered as a fixture, although only attached to other machinery, and not to the premises themselves, and capable of being removed without immediate or physical injury of any sort. Farrar v. Stackpole, 6 Greenl. 154. To the same effect are the Pennsylvania cases. Voorhis v. Freeman, 2 Watts & S. 116; Pyle v. Pennock, 2 Watts & S. 390. But in New York it was held, that, in order to constitute a fixture, adaptation to the enjoyment of the realty and annexation thereto must concur, although where the former exists
In Indiana, the New York opinion seems to prevail, and there is no conflict in the cases.
In Taffe' v. Warnick, 3 Blackf. 111 (23 Am. Dec. 383), it was held that a carding machine in a carding house, standing on the floor in its usual place of operation, but not fastened at all to the building, was not a fixture. In Sparks v. The State Bank, 7 Blackf. 469, it was held that a steam engine in a tanyard, for the purpose of tanning, which could be removed without injury to the building, being connected therewith by braces, was a fixture, and passed to the mortgagee of the land where it stood. It was held in this case that the exceptions as to a tenant in favor of trade were not applicable; that the rule as between heir and executor, vendor and vendee, and mortgagor and mortgagee, is the same, and that, in such cases, such fixtures pass with the land, though erected for the purposes of trade. In Taffe v. Warwick, supra, it was held, that, as between debtor and creditor, the same rule applies as between landlord and tenant. In Millikin v. Armstrong, 17 Ind. 456, it was held that personal property, used in and attached to a starch factory, will pass by a mortgage of the freehold. In Bowen v. Wood, 35 Ind. 268, the court went a step further, and held that machinery put in a mill after the execution of a mortgage, to supply the place of old and worn-out articles, becomes a part of the realty, and is subject to the mortgage. In Pea v. Pea, 35 Ind. 387, it was held that a steam saw-mill and machinery pass by a conveyance of the land on which the mill stands; and a like ruling was make in Kennard v. Brough, 64 Ind. 23, as to a sorghum mill. In Cromie v. Hoover, 40 Ind. 49, it was held, that buildings erected on leased land by a tenant, for the better use and enjoyment of. the property, may be removed by him before the expiration of his lease, provided that can be done without permanent injury to the freehold. To the same effect are Allen v. Kennedy, 40 Ind. 142, and McCracken v. Hall, 7 Ind. 30. It is also
It appears from the cross complaint that the real owner of
Upon such a showing, it follows from the cases hereinbefore cited, that the machinery was subject to the mortgage.
If Peyton Johnson was a tenant, the rule, as we have seen, is that a tenant may remove such machinery during his term, but not afterwards; but the cross complaint shows that the cross complainants permitted the machinery to remain in the mill long after the sixty days allowed for trial had expired, and long after Johnson's possession had ended, and after the premises had been rented by Kennedy, and the mill and machinery delivered up to him.
The alleged contract between the cross complainants and Peyton Johnson did not bind Hamilton, the mortgagee. The cases hereinbefore cited, which hold that the legal rule as to fixtures may be modified by the contract of the parties, apply only when the contract is made by the party who, without such contract, would be entitled to the personal property as part of the real estate. There was no cause of action in the cross complaint, and the court erred in overruling the demurrer to it.
As to the answer to the cross complaint, it need not be specially considered, because a bad answer is good enough for a bad complaint. Ætna Ins. Co. v. Baker, 71 Ind. 102. But it shows that Peyton Johnson was only a tenant; that he annexed the machinery without the knowledge or consent of the defendants; that at the end of his tenancy he delivered up the
Per Curiam. — It is therefore ordered by the court, upon the foregoing opinion, that the judgment of the court below upon said cross complaint be, and the same is hereby, in all things reversed, at the costs of the appellees, and this cause is remanded, with instructions to the court below to sustain the demurrer to the cross complaint.
Woods, J., dissents.