Johnston v. Philadelphia Mortgage & Trust Co.

129 Ala. 515 | Ala. | 1900

DOWDELL, J.

It is conceded in argument and the evidence without dispute shows that the shelving and drawers, the subject-matter of this suit, were affixed to the building or store-house by the owner of. the house and lot and thereby became a part of the realty. And that said 'Shelving and drawers remained without physical severance or change from the time when so affixed by the owner down to the commencement of this suit. The plaintiff bases his right of recovery on a claim of title in the Francis-Vandergriff Shoe Co., a corporation, of which he is the receiver. The alleged title to the Francis-Vandergriff Shoe'Company is based upon a verbal contract of sale made by O. H. Francis, the owner of the realty. The defendant derives its title through a mortgage made to it by the said C. H. Francis conveying the realty. This mortgage was made subsequent to the verbal contract of sale of the fixtures, and at the time of the execution of the mortgage, the Francis-Vander-gri ff Shoe Co. was in the possession of the store-house in which the said shelving and drawers were affixed, as the tenant of the said C. IT. Francis, and carrying on a. merchandise business in the same. In this manner, the Francis-Vandergriff Shoe Co. was in possession of the said shelving and drawers, but as above stated there had been no physical change or severance of the same from the 'building, to which they had been affixed by the owner.

The plaintiff’s contention is, that a severance was in law effected by the sale of tin shelving and drawers by C. II. Francis and that by said sale these fixtures were converted into personal chattels. We think there can be no 'doubt of the legal proposition, that the owner, of the realty may by proper contract of sale, sever a fixture from the realty, thereby converting it into a personal chattel, without at the time physically detaching such fixture from the realty. But in order to convey the legal title to a fixture, when there has been no actual severance or physical detachment and as long as it remains affixed to the realty, the contract must be in writing and be executed with the same formality as a conveyance of the realty, since in law the fixture is a part of the realty. The sale by C. H. Francis to the partnership of Francis & 'Co. under and through which the Francis-Vandergriff Shoe Co. claimed title, not being In writing, the legal title did not pass by said sale out of said O. H. Francis. The legal title being in him at the date of the execution of the mortgage to the defendant conveying the freehold, passed by said mortgage conveyance to the defendant. “The general rule undoudtedly is, that all fixtures, whether actually or constructively annexed to the realty, pass by a conveyance or mortgage of the freehold, where there is nothing to indicate a contrary intention.” — Ewell on Fixtures, Oh. 9, p. 275, and many authorities cited in the notes.

It is concealed that the fixtures in question were affixed to the realty by the owner, and it is clearly shown by the evidence that they were placed in the building to more perfectly complete the building for the purpose for which it 'was erected, viz., of carrying on a merchandise business in the same by the owner. The facts are materially different from the facts in the case of Broadus v. Smith, 121 Ala. 335, and other authorities cited by appellant in his brief. The question of trade fixtures with the right of removal of the same upon the termination of the lease or tenancy does not arise in this case, and the authorities cited on that subject-are without application here. On the undisputed evidence in this case the legal title to the shelving and drawers was in the defendant, and the court might, very properly have given the affirmative charge to find for the defendant.

As the verdict of the jury in favor of the defendant was in accordance with the law and the facts, no injury resulted to tint plaintiff in the refusal of the charges ‘requested 'by him, nor in giving of the charges requested by the defendant.—Bienville, Water Co. v. City of Mobile, 125 Ala. 178; Glaas v. Mayer, 124 Ala. 332; Seymour v. Farquhar, 93 Ala. 292; Pritchett v. Pollock, 82 Ala. 169.

We find no reversible error in the record, and the judgment of the city court will he affirmed.