46 Ill. 156 | Ill. | 1867
delivered the opinion of the Court:
This record presents the question, whether the building erected upon the lot, which was soldmnder the mortgage, was permanent and fixed in its character, and formed a part of, and passed with, the ground when it was sold; or, was it temporary, and so far detached as not to form a part of the realty ? It was placed on the lot several months after the mortgage was given, by the mortgagor and his partner, in the house joiner business. It was placed on the lot by the firm for the use of their business. It seems to have been made of rough materials, slightly built, placed upon blocks resting on-boards laid on the surface of the ground. It was not placed on a stone or brick foundation, and in no manner let into the ground; and from the evidence, it would seem to be manifest, that it was not intended to be permanent in its character, or to have been placed there as an improvement of the lot, but simply to answer the convenience of the partnership.
It seems that it was not constructed with the funds of the ■mortgagor, but with labor, material and means of the firm ; and if it did not become a part of the real estate, 'it was a chattel owned by the partnership. Had the building been of a permanent character, or had it been placed there with the intention of permanently remaining, then it could not be severed without the consent of the mortgagee. Or had it been placed on the lot by the mortgagor, with his own means, it might have presented a different question. But from the character of the structure, and the purpose for which it was employed, it would seem that it was not designed for any other than a temporary use, and to be removed hum the lot when the object of its erection was accomplished.
While the intention alone 'will not always determine whether such structures are real or personal estate, it will have a controling influence in cases of doubt. Here, the property .of a stranger to the mortgage, to the extent it belonged to the partner of the mortgagor, was placed on this lot. And no one could claim that he could have intended it to become fixed, and a part of the real estate, especially when we see the apparent effort and care observed, that it should not become attached even so slightly as by the blocks upon which it rested sinking into the soil. That seems even to have been guarded against,' so that there could be no claim that it had become attached, and formed a part of the realty.
Even a mortgagor may make temporary erections, if they are not attached to the freehold, and remove them, before the mortgage is foreclosed, if he does not depreciate the value of the security, as it existed when the mortgage was given. In such a case, a court of equity would not interfere to restrain its removal; much less to prevent 'the removal of such an erection, when placed there by a tliird party. In this case, the mortgagee has no claim, legal or equitable, to the money or labor of Kelly, expended in building this house. Nor does it appear that its removal would not still leave more property obtained under the foreclosure of the mortgage, than is amply sufficient to pay the mortgage debt. But if there was not, the mortgagee gets all that was covered by his mortgage, and Kelly is under no moral or legal obligation to make it good.
The law has always been liberal in the promotion of trade, by allowing the lessee to remove trade fixtures, which, as between executor and heir, and vendor and vendee, would be held to constitute a part of the realty. Hence, the law in such cases considers the intention with which they were placed on the land. If erected for the purposes of trade, and not permanently attached to the soil, they might be removed during the term. In this case, the evidence shows that this building was erected to be used as a shop, wherein the business of a firm of house-joiners, manufactured or prepared materials for buildings; and being temporary in its character, and not permanently fixed to the soil, and Kelly being the owner of an undivided half, we have no doubt, that it might be removed against the wishes of the mortgagee. It is the same as if the mortgagor had licensed a stranger to place it there, with the right of removal. It then follows that the court below erred in rendering a decree restraining its removal. The decree is reversed and the cause remanded.
Decree reversed.