58 P. 1061 | Cal. | 1899
Foreclosure of laborers' and materialmen's liens. Plaintiff brings the action for himself and as assignee of thirteen other lienholders. The court gave judgment for plaintiff, from which defendant, Joshua Hendy Machine Works, appeals on the judgment-roll alone.
From the findings it appears that defendant Myres was and now is the owner of the mining property commonly called the "Calf Pasture Quartz Mine." On February 8, 1896, he entered into a contract of sale and purchase of the property with defendant Berry, who, before any work was begun upon said mine or any material furnished therefor, *566 assigned to defendants Walter, Johnson, Ray, and Ward each an undivided one-fifth interest in said contract, and they then entered into possession of the property. It was agreed in their contract, among other things, that in case Berry failed to purchase the mine as agreed he should leave the mine properly timbered and turn the same over to Myres in good mine order free from any encumbrances, "but may remove any engine or other hoisting machinery he may have placed on the mine above ground." On March 24, 1896, defendant, the Joshua Hendy Machine Works, a corporation, entered into a written contract of lease with defendants Walter, Johnson, and Berry, which was recorded in the office of the county recorder of Placer county on April 4, 1896, whereby the corporation defendant leased to them a certain engine and certain other machinery, and the latter agreed to pay as rental therefor certain stipulated sums, on payment of which they were to have the right to purchase upon further payment of one dollar. About March 29, 1896, these five defendants took possession of said machinery from defendant corporation and placed the same on said mine, and "the same was permanently affixed and attached thereto by means of bolts and screws; that said machinery was necessary, and was thereafter, during the times in the complaint alleged, actually used in the working and operating of said mine." On July 30, 1896, defendant corporation served notice on defendants Berry, Walter, and Johnson, that unless, within five days, they paid the balance due on said contract it would declare the same rescinded and take possession of the property. This demanded payment was not made. The work done and the materials furnished, for which liens are claimed, occurred before July 30, 1896. The liens were filed on the mine and the machinery in question, and the actions were commenced about the last-named date.
Appellant contends that the personal property leased by it retained its identity as personal chattels and was not subject to the liens, notwithstanding it had become fixed to the realty by the lessees. It was held, under a similar lease, in Hendy v.Dinkerhoff,
Hill v. Sewald, 53 Pa. St. 271, 91 Am. Dec. 209, was a case where Hill brought trover against Sewald for the value of two boilers and appurtenances. Sewald had conveyed a piece of land to one Snodgrass on which was a steam mill, and took from him a mortgage to secure part of the purchase money. The boilers having worn out, Snodgrass made an agreement with Hill, the plaintiff, by which Snodgrass hired two boilers at a stipulated rental per month and placed them in the mill, reserving the right to remove them whenever he desired to do so. Four years after the boilers were placed in the mill, Sewald purchased the premises at foreclosure sale. Hill gave notice at the sale of his claim to the boilers, and after the sale demanded their return, which was refused. The question was, whether the boilers had, in legal contemplation as they had in fact, been incorporated into the realty and passed to the purchaser. The court said: "It is not the character of the physical connection with realty which constitutes the criterion of annexation, as the authorities hereinafter abundantly show. . . . . When these boilers and their connections were built into the mill of Snodgrass, it is clear it was with no intention on his part, or those who acted for him, to affix it to the realty as his property, or with an intention to make it his own by a wrongful conversion. They were placed there as the personal chattels of Hill, under a valid contract of hiring for their temporary use, the right of removal being expressly reserved. How, then, can it be said that a chattel is *569 converted into realty, when it was neither the intention of the owner of the chattel nor that of the owner of the freehold to annex it?"
In Stell v. Paschal,
The case of Hendy v. Dinkerhoff, supra, clearly recognizes the principle that it is the intention of the parties which determines whether personality is to retain its character as such. (See, also, Fratt v. Whittier,
The general rule is as to sales upon execution, that the purchaser acquires thereby only such title and interest as the judgment debtor had, and the rule is the same whether the sale follows the lien of attachment or is upon execution without such lien; and the rule also applies at sales under foreclosure *570
of mortgages upon real estate — the purchaser ordinarily takes the risk of title. (Boggs v. Fowler,
In contemplation of law the character of the machinery belonging to appellant did not change its character as personal property by the use to which the lessees put it, and it was error *571 to include it in plaintiff's liens. The judgment should be modified by excluding this machinery from its operation, and otherwise the judgment should be affirmed.
Haynes, C., and Britt, C., concurred.
For the reasons given in the foregoing opinion the judgment is modified by excluding the engine and machinery claimed by appellant from its operation, and otherwise the judgment is affirmed.
McFarland, J., Temple, J., Henshaw, J.