Homestead Land Co. v. Becker
96 Wis. 206
Wis.
1897
Check Treatment
PiNNET, J.

In Taylor v. Collins, 51 Wis. 123, the following rules or tests are approved for determining whether articles of machinery are fixtures: “ (1) Actual physical annexation to the realty; (2) application or adaptation to the use or purpose to which the realty is devoted; (3) an intention on the part of the person making the annexation to make a permanent accession to the freehold.” The matter of intention of the parties is held to be the principal consideration.

The machinery, etc., in dispute was annexed to the realty by the original mortgagors, the grantors of the judgment debtor, and it was subsequently seized as personal property *211on the execution against the defendant the tack company, in favor of the defendant Becker, receiver, etc. There was an actual physical annexation of the property to the realty. It was applicable and adapted to the use and purpose to which, the realty was devoted. It was clearly intended to be an accession or addition to the freehold, unless it can be maintained that its character was determined to be that of personal estate by the subsequent execution and delivery of a chattel inortgage thereof by the corporation, mortgagor in the real-estate mortgage, to the plaintiff, at the time the latter was executed and delivered. The lots had been sold to the parties who erected the factory by the plaintiff, and it had loaned them the money with which to erect it, furnish machinery, and put the factory in operation. The property was conveyed, when completed, to these parties by the plaintiff, and they mortgaged it to it, to secure the debt for the lots and money loaned. Subsequently, they organized as a corporation, to which the premises were conveyed by them, in consideration that the corporation would assume the payment of the mortgage debt to the plaintiff. IJp to this time nothing had occurred, so far as shown, to indicate any other intention than that the machinery, etc., should be regarded as a part .of the realty, to which it had been annexed and to the use of which it was particularly adapted. Under the operation of the general rule, as between mortgagor and mortgagee, no intention of removing it having been shown, the machinery, etc., passed by the mortgage to the.plaintiff of the freehold, and had so passed to the mortgagors by the previous deed of the premises to them from the plaintiff; and this although it was capable of being removed without injury to the building. Frankland v. Moulton, 5 Wis. 1; Voorhees v. McGinnis, 48 N. Y.278 ; Pierce v. George, 108 Mass. 78.

Subsequently, on January 24, 1891, the corporation now the tack company executed and delivered to the plaintiff its *212note for the amount of the plaintiff’s mortgage debt, and a mortgage securing the same on the same premises, the plaintiff discharging its former mortgage. At the same time, the corporation executed and delivered to the plaintiff a chattel mortgage to secure the payment of such new note, upon all the fixed machines and machinery, including the engine and boiler in the factory, etc.; and the plaintiff filed this mortgage July 27,1893, after judgment had been entered against the corporation, the tack company. Eo explanation or reason is shown why the chattel mortgage was given, beyond the inference that may fairly arise that the parties intended to make the plaintiff’s lien on the factory, machinery, etc., safe and certain, beyond any doubt or question. Certainly nothing appears indicating that the parties contemplated or intended a" severance or removal of this machinery from the factory. The execution of the chattel mortgage, therefore, is not sufficient per se to change the character of the machinery, which it had already acquired, and raise a presumption of an intention to restore the character which it had formerly possessed as personalty before it was placed in the factory; and it is very doubtful whether the chattel mortgage ever became operative at all. Kendall Mfg. Co. v. Rundle, 78 Wis. 150-158. These views are also sustained by the following cases: Fifield v. Farmers' Nat. Bank, 148 Ill. 163; Meagher v. Hayes, 152 Mass. 228; McRea v. Central Nat. Bank, 66 N. Y. 489; Strickland v. Parker, 54 Me. 265; Winslow v. Merchants' Ins. Co. 4 Met. 306. The cases cited by the appellant fail to show that, under the facts stated, the execution of the chattel mortgage would operate, by estoppel or otherwise, to convert the machinery, etc., that had previously been annexed to and made a part of the freehold, into personal estate, so that the mortgage of the freehold would fail or cease to bind it. The lien of the plaintiff’s mortgage covered all that had become realty before or at the time it was executed, and all subsequent acces*213sions to the realty,- unless, by a valid agreement to which it was a party, the character of personal estate was impressed thereon. McFadden v. Allen, 134 N. Y. 489. The contemporaneous execution to the plaintiff of the chattel mortgage to secure the same debt did noty^ se operate to impress upon such property the character of personal estate.

The judgment of the circuit court, that the machinery, etc., was subject to the plaintiff’s mortgage on the real estate, was correct.

By the Court. — The judgment of the circuit court is affirmed.