164 P. 564 | Or. | 1917
delivered the opinion of the court.
The trial court fully explained the issues raised by the pleadings and over the objections and exceptions of counsel for defendant charged the jury as follows:
“Plaintiff claims said personal property because it became a fixture to and a part of the land covered by his mortgage. You are instructed that a fixture is any article or thing which was personal property, but which by being physically annexed or affixed to real property, becomes accessory to the real property and a part and parcel of it. Personal property may therefore be thus transformed into real property.”
“When personal property is attached in a permanent manner to real property and adapted to he used with that part of the real property to which it is attached, then it becomes a fixture and a part of the real estate, a part of the land itself.”
*360 “In using the term ‘permanently attached’ in this contention, it is not meant that the personal property shall be so attached as to make its removal impossible or even difficult, but any personal property which is placed upon and attached to real property, which is used as a part of the real property, and which is suitable for and adapted to such a continued use, in such a position and manner, then it is regarded by the law as being permanently attached.”
“Articles of personal property annexed by the owner to land which is subject to a mortgage, becomes subject to the mortgage and cannot be removed without the consent of the holder of the mortgage. This is true whether such annexation was before or after the-execution of the mortgage.”
Counsel for defendant also asked the court to charge the jury that the intention of the party placing machinery in a building is the sole criterion as to whether it becomes a permanent fixture and a part of the realty, and thus bring it under the mortgage lien; and that the permanency of the installation of such machinery was not to be considered.
The first of the tests — that is, annexation to the realty,.either actual or constructive, is generally held to be uncertain and unsatisfactory, the tendency being to accord less and less significance thereto. There must of course be actual or constructive annexation, but regard must be had to the object, the effect, and the mode of annexation, and physical annexation is not alone sufficient. The extent and mode of actual annexation have but little weight except in so far as it relates to the nature of the article itself, the use to which the same is applied, and other circumstances as indicating the intention of the party making the annexation. But it is usually conclusive that a chattel has become part of the realty when it has been so affixed as to be incapable of severance without injury to the freehold: 11 R. C. L., pp. 1059, et seq.
The third test, the intention of the party making the annexation, has been said by some of the authorities to be a controlling consideration, and generally it is held to be the chief test. To have this effect, the intention to make an article a permanent accession to the realty must affirmatively and plainly appear. The test of intention is to be given a broad and comprehensive signification. It does mot merely imply 'the secret action of the mind of the owner of the property, nor need it be expressed in words. It is to be inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexation, and the purpose or use for which the annexation has been made; which, obviously, suggests that the other tests are really part of this comprehensive test of intention, and that they derive their chief value as conspicuous evidence of such intention: 11 E. C. L., p. 1062, § 6. The controlling intention * * is the intention which the law deduces from all of the circumstances of the annexation: 19 Cyc. 1046.
As we understand the instructions of the trial court, while not using the exact language adopted by the text-writers, the substance of the law was given to the jury in the charge. The jury passed upon the facts. It was not a very violent conclusion for the jury to find that
Counsel for defendant argues that the chattel was not injured by the removal. That may be true, but how about the real estate that was left behind? The jury found that that was denuded and injured.
The question in the present case is between the mortgagor and mortgagee and the rules which apply when there are intervening equities of third parties such as attaching creditors and subsequent chattel mortgagees, need not be considered. The question is a mixed one of law and fact and was fairly submitted to and determined by the jury. Finding no error in the record the judgment of the Circuit Court is affirmed.
Affirmed. Rehearing Denied.