139 Tenn. 204 | Tenn. | 1917
delivered the opinion of the Court.
^ The question for disposition arises on the intervening petition of Goodman Manufacturing Company in a general creditors’ proceeding filed in the chancery court of Claiborne county. The facts necessáry to raise the points of law to be determined are these:
On the 1st day of May, 1907, the American Association, Incorporated, leased to the Nicholson Coal Company a coal mine in Claiborne county. Section 5 of the lease reads:
“The lessee further covenants and agrees that all rents and royalties herein agreed to be paid shall he deemed and considered as created for the rent of land, and shall be a lien on this leasehold and the .fixtures and improvements thereon, and on the personal property of the lessee, and on the coal*206 mined from and coke made on said premises for twelve months after said rents and royalties fall dne, ■and nntil the termination of any snit commenced within that time for said rents and royalties.”
Section 22:
“The lessee further covenants and agrees at the expiration of this lease to leave and surrender to the lessor the premises herein demised, with the improvements, fixtures, buildings and dwellings thereon, and with all of the mines, entries, openings', tramways, inclines, chutes, tracks, rails, and appurtenances inside and outside of the mines in good working order and condition (but on such termination the working tools and instruments used in mining, machinery, engines, boilers, pumps,, ropes, and weighing scales and other personal property placed upon said premises by the lessee shall be and remain the property of lessee, and may be removed by the lessee in case all rents and royalties be paid and agreements of this lease fully complied with): Provided, however, the lessee covenants and agrees that the lessor, shall have the right and preference to purchase, at an appraisal of fair market value, all or any of the machinery and other personal property of the lessee above allowed to be removed, should the lessor desire to do so at the expiration or sooner termination of this lease in lieu of allowing removal.”
On the 23d of January, 1911, nearly four years after the execution of the lease, the Goodman Manufacturing Company sold to Nicholson Coal Company, which
The Goodman Manufacturing Company filed its intervening petition alleging the maturity of the purchase-money debt and the failure to pay, and sought the chancellor’s permission to take possession of the machinery and remove it. The lessor filed an answer relying on the lease contract, and ° claim
The question has been much debated as to whether the machinery constituted a fixture, and, if so, whether it could be lawfully removed. On this subject it is sufficient to say that if a fixture at all, it was a trade ' fixture, and hence, as between lessor and lessee, nothing else appearing, removable by the latter; the rule being very liberal towards the lessee’s right of removal when it does not appear that such action is contrary to any prevailing usage or that it would cause any material injury to the estate, and it appearing that the machinery can be detached without losing its essential* character or value as a personal chattel.
We are of opinion there is no error in the decree of the court of civil appeals, and it is therefore affirmed.
The question of right, as. between landlord and tenant, to remove trade fixtures, conditional upon their susceptibility to removal without injury to themselves is discussed in note in 18 L. R. A. (N. S.), 423.