Hickman v. Booth

131 Tenn. 32 | Tenn. | 1914

Mb,. Justice Geeen

delivered the opinion of the -Court.

This suit was brought by R. H. Booth, the plaintiff below, against H. C. Hickman, the defendant below, to replevin a telephone instrument and certain wires connected therewith. There was a judgment in favor of Booth for. the instrument and wires, from which Hickman appealed. This judgment was affirmed by the court of civil appeals.

The record shows that Booth sold his farm to Hickman, and that there was in the residence a telephone which was connected with an exchange' at a nearby point. The telephone instrument and the wire seemed to have been the property of Booth.

The proof offered on behalf of the plaintiff below is that there was a parol reservation of this telephone outfit by the vendor at the time of the sale. Booth so testifies, and his testimony is corroborated, and the finding of the circuit judge to this effect is really decisive of the controversy in this court.

However, counsel have argued the case in their briefs rather as though there had been no reservation, and have submitted to the court the question as to whether a telephone instrument installed in a house in the ordinary manner is a fixture so attached as to pass with a deed to the land.

We do not think a telephone instrument is such a fixture. It is in no sense a permanent improvement. Telephones are put in and taken out at the pleasure of the occupant of the premises, and ordinarily the instruments are rented and the‘title to such instruments is distinct from the title to the freehold. Telephones are not placed in houses primarily for the improvement of the property, but for tbe convenience of tbe occnpants.

In Tennessee only those chattels are fixtures which are so attached to the freehold that, from the intention of the parties and the uses to which they are pnt, they are presumed to he permanently annexed, or a removal thereof would cause serious injury to the freehold. Johnson v. Patterson, 13 Lea, 626; De Graffenreid v. Scruggs, 4 Humph., 451, 40 Am. Dec., 658; Union Bank v. Wolfe, 114 Tenn., 255, 86 S. W., 310, 108 Am. St. Rep., 903, 4 Ann. Cas., 1070. The usual test is said to he the intention with which a chattel is connected with realty. If it is intended to he removable at the pleasure of the owner, it is not a fixture. Johnson v. Patterson, 13 Lea, 626; Cannon v. Hare, 1 Tenn. Ch., 23.

We are of opinion that a telephone instrument, with the wire, attached to a house in any of the customary methods, is not a fixture that passes with a conveyance of the land.

The petition for writ of certiorari is denied.