61 Ky. 357 | Ky. Ct. App. | 1863
delivered the opinion oe the court:
T. A. Marshall sold and conveyed to C. M. Johnson a house and lot in the city of Lexington, and retained a lien on the property to secure the unpaid purchase money.
Johnson afterwards mortgaged the same-property, with the household goods and kitchen furniture in the house, to R. A. Buckner, to secure a debt which he owed him.
The debt to Marshall was not paid when it matured, and he brought his suit against Charles F. Johnson, the executor of C. M. Johnson, who had in the meantime died, to coerce the collection of his debt by the enforcement of his lien, and made R. A. Buckner, the mortgagee, a defendant.
Buckner answered, admitting the prior and superior lien of Marshall, made his answer a cross-petition against his co-defendant, C. M. Johnson’s executor, and prayed for a foreclosure of his mortgage, and for a sale of so much of the mortgaged effects as would be required to pay his debt.
It seems that a judgment was rendered in the case in favor of Marshall, subjecting the property to sale to, pay his debt, and appointing a commissioner to make the sale; but the judgment is not copied in the record furnished us.
The commissioner reported that on the 6th of August, 1862, he “offered said property, in the decree mentioned,” for sale, and Richard A. Buckner became the purchaser at the price of $6,750.
Afterwards a commissioner was, by an order of the court in some consolidated cases, (the names of the parties to which are not given,) directed to sell the furniture, &c., which order-he proceeded to execute on the 22d of Nov., 1862; and, after
These chandeliers were purchased and put into the house by Johnson after his purchase from Marshall; but whether before or after the mortgage to Buckner does not appear. They are affixed,by means of screws, to iron pipes let into the walls of the house for the purpose of conducting gas to the burners, and can be removed without injury to the walls or ceiling of the house, or to the pipes to which they are attached; and, whilst'they are used as burners to light up the house, their finish and construction are such as to render them ornamental also; The iron.pipes cannot be taken out without removing a part of the walls through which they pass.
Articles of a personal nature, affixed, to the freehold, are generally denominated fixtures. It will, therefore, be necessary to inquire what kind of annexion confers upon goods the character of fixtures.
Questi'ons. respecting the right to what are called fixtures arise between three classes of persons: L. Between heir and executor; and there the rule obtains with most rigor in favor of the inheritance, and against the right to consider, as a personal chattel, anything which has been affixed to the freehold. 2. Between the executor of a tenant for life and the remainder man or reversioner; and here the right to fixtures is considered more favorably for the executor. 3. Between landlord and tenant; and here the claim to ha.ve articles considered as personal property, is received with the greatest latitude and indulgence. 4. There is still an exception of a broader character in respect to fixtures erected for the purposes of trade.
The strict rule as to fixtures, that applies between heir and executor, applies equally between vendor and vendee and mortgagor and mortgagee. (2 vol. Kents Com., page 411, 12
Nor can it be said that actual annexation was so essentially necessary to constitute a fixture, even in the earliest and most technical periods of the common law, as to bear down and overpower all other considerations. The doctrine of heir-looms necessarily implies that chatties may be deprived of their moveable and personal character, and rendered inseparably attendant upon the inheritance, by the force of moral association. It has never been doubted that the keys of a house, or the fences or walls of a farm, are part of the freehold. It was held in Kittridge vs. Wood, (3 New Hamp., 503,) and Parsons vs. Camp, (11 Conn., 525,) that the manure on a farm at the time it was sold vested in the vendee.. And these decisions were followed in Goodrich vs. Jones, (2 Hill, 142,) and the purchaser held to be both entitled to the manure and the fences, although the latter had been detached from the soil. (Ib., p. 251-2.)
These authorities are cited to show that the ancient rule, which treated nothing as fixtures except such chatties as were fastened to the realty and were more or less immovable, has
In Fairis vs. Walker, (1 Bail., 540,)-the plaintiff sold and conveyed his plantation to the defendant, on which cotton was grown, and a cotton gin was in a gin house on the premises attached to the gears. The plaintiff brought trover for the gin; but the court held that it was a fixture, and passed with the freehold; saying, as between heir and executor, or vendor and vendee, all things which are necessary to the full and free enjoyment oí the freehold, and in any way attached to it, are held to be fixtures, and pass with it.
In 6 Greenleaf, 157, Justice Weston said: “Modern times have been fruitful of inventions and improvements for the more secure and comfortable use of-buildings, as well as of many other things which administer to the enjoyment of life. Venitian blinds, which admit the air and exclude the sun whenever it is desirable so to do, are of modern use; so are lightning rods, which have become common in this country and in Europe. These might be removed from the building without-damage; yet, as suited and adapted to the buildings upon which they are placed, and as incident thereto, they are doubtless part of the inheritance, and would pass by a deed as appertaining to the realty. In Walker vs. Shannon, (20 Wend., 636,) Justice Cowen, with great labor, reviewed the authorities on this point, and came to the conclusion that the machinery in a woolen factory, being moveable, and not in any manner affixed or fastened to the building- or land, although material to.the performance,of the factory in certain parts of its work, was personal property, as between tenants in common and owners of the fee. The question was decided as if it had arisen between vendor and vendee. But in Voorhis vs. Freeman, (2 Watts & Serg., 117,) the case of Walker vs. Shannon, supra, was referred to and disapproved.
The question whether chatties are to be regarded as fixtures depends less upon the manner of their annexation to the freehold than upon their own nature and their adaptation to the purposes for which they are used. (2 Smith’s Lead. Cases, 251.)
In Lawrence vs. Kemp, (1 Duer, 363,) the question was be
The rule which governed this case is, that the claim to have such articles considered as personal property is received with the greatest latitude and indulgence; a very different rule from that which prevails between vendor and vendee, as we have before shown, and the difference in the rules governing destroys the analogy in the two cases.
We have shown, authoritatively, as we think, thatthe physical annexation of the articles in controversy'' to the freehold is such as, between vendor and vendee in an ordinary sale without an express reservation of them, would pass them to the vendee. But, in this case, the articles never belonged to Marshall; they were purchased and put up by. Johnson after he purchased the house and lot; and the question is, if Marshall had no lien on them, can Buckner, a purchaser under his sale, to enforce his lien, be permitted to hold them?
The sale of the property was doubtless advertised. Buckner, and others desiringto purchase, attended at the time and place.' They found these articles in their appropriate places, to be used for the purposes for which they were designed. The representatives of Johnson had not removed them, probably because they regarded them as a part of the freehold.
Buckner, having purchased in good-faith and for a valuable consideration, should take the property with the incidents, and in the condition it was in when he purchased.
Wherefore, the judgment is affirmed.