46 Tex. 551 | Tex. | 1877
In no view which we have been able to take of this case, can the judgment he sustained.
On the trial in the court below, the presiding judge instructed the jury upon the hypothesis that in selling the mill in controversy, Asa Watt Thompson may have acted as the agent of the owner; but as there is no evidence in the record tending to show that he pretended to act in a representative character in the transaction, or was understood by purchaser as doing so, nor anything whatever shown which can be regarded as justifying or warranting an inference that he .had any such authority—while on the other hand, the contrary seems to be clearly established,—it is unnecessary for us to give any consideration to this view of the case.
The validity of the judgment, consequently, depends entirely upon the fact whether said Thompson had any title to or interest in the mill at the time of the alleged sale under which it is claimed by appellees; and if so, whether this sale was legal, and vested in the purchaser a valid title to the mill as against Wells Thompson, the subsequent vendee of said Asa Watt Thompson’s undivided half of the land. Before we can properly determine these questions, it is necessary that we shall ascertain what, in contemplation of law, was the true nature and character of the property at the time of the sale, upon which appellees rely to maintain their action. Was it a chattel, or was it so fixed or annexed to the land as to have become, in contemplation of law, a part of it ?
The word “fixture,” if a legal term, which Lord Campbell seems to doubt, it is universally conceded, is, as a substan
It is said, the weight of the modern authorities establish the doctrine that the true criterion for determining whether a chattel has become an immovable fixture, consists in the united application of the following tests:
1st. Has there been a real or constructive annexation of the article in question to the realty ?
2d. Was there a fitness or adaptation of such article to the uses or purposes of the realty with which it is connected ?
3d. Whether or not it was the intention of the party making the annexation that the chattel should become a permanent accession to the freehold ?—-this intention being inferable from the nature of the article, the relation and situation of the parties interested, the policy of the law in respect thereto, the mode of annexation, and purpose or use for which the annexation is made.
And of these three tests, pre-eminence is to be given to the question of intention to make the article a permanent accession to the freehold, while the others are chiefly of value as evidence as to this intention. (Ewell on Fixtures, 21, 22.)
Tested by these well-established principles and rules for our guidance in determining the question,'. there can, we think, be no hesitancy in concluding that the mill in question was attached to and passed as a part of the realty, by the deed of Mrs. Thompson to her sons, Asa Watt Thompson and Wells Thompson. If it was not a part of the realty, but continued to be a chattel, and did not pass with the land by the deed, then it is not shown that said Asa Watt Thompson ever had any title to or interest in it. And as neither his vendor, nor any of the parties claiming under him, ever had possession of it, it follows that appellees have no foundation to support their action.
On the other hand, if the mill was annexed to and part of the land, a parol sale of it, even by the owner of the land, would he void, because in conflict with the statute of frauds. (Landon v. Platt, 34 Conn., 517; Myers v. Schimp, 67 Ill., 469.) And if this was not so, as the property still remained annexed to the land, it must be held that the vendee, Wells Thompson, who had no notice of the previous contract for the sale of the mill by his vendor, got, by his deed, the better title. (Bringhoff v. Munzenmaier, 20 Iowa, 513; Richardson v. Copeland, 6 Gray, 536.)
Reversed and remanded.
Justice Gould did not sit in this case.