Kimball v. Darling, 32 Wis. 675

Kimball v. Darling

32 Wis. 675 | Wis. | 1873

*684The cause was decided, and tbe following opinion filed, at tbe June term, 1871.

DixoN, C. J.

It is said tbe complaint contains no sufficient averment that tbe steam engine and boiler and planing machine in question were ever put up and used, and so attached to tbe freehold as to become a part of tbe realty. The averment is in these words: “That soon after they entered into said agreement, tbe defendants last aforesaid erected upon said premises a cab manufacturing establishment, and put therein machinery which became part and parcel thereof, and proceeded to operate the same, and among other machinery which they put therein for the purpose aforesaid, was a steam engine and boiler and planing machine and planer.” The particular manner in which the machinery was annexed or connected is not stated, but this is a good averment that it became part and parcel of the land or premises described in the complaint and in the executory contract set out therein, by which the plaintiffs agreed to sell the same premises to the defendants, and for the foreclosure of which contract this action is brought. It is a sufficient averment on general demurrer, or on this motion to dissolve the injunction. If the defendants desired a more specific statement of facts before answering, their remedy was by motion to make the complaint more definite and certain.

It thus appearing from the complaint that the machinery became part of the real estate, so that the title or a lien vested in the plaintiffs as the owners, or for their security for the purchase money and other moneys advanced by them to the defendants under the contract, the next point of inquiry is as to the answer of the appellant, whether he has denied these facts, or otherwise met and overcome the equity of the complaint. He admits the making of the contract of sale and the advance or loan of money by the plaintiffs as stated in the complaint, but denies that he was one of the parties to the contract, and avers that it was the defendants Theo. W. Morse and Francis *685Moon, and not Thao. W. Morse and himself, who composed the firm of T. W. Morse & Co., the purchasers. He does not aver that any payments have been made to the plaintiffs, or that all is not due to them as alleged in the complaint. He does not, as we understand his answer, deny or profess to, that the steam engine and boiler and planing machine became part of the realty before their removal under the circumstances stated in the complaint. The only part of his answer which can be considered as in any way relating to this subject is as follows : “ The defendant, further answering said complaint, says that on or about the time mentioned in plaintiffs’ complaint, the plaintiff Reeder Smith loaned and advanced to Theo. W. Morse and Francis Moon, who then and there and at all other times mentioned in plaintiffs’ complaint, constituted the firm of T. ~W. Morse & Co., the sum mentioned in said complaint, and not to this defendant. The defendant denies each and every allegation of said complaint as far as this debt is concerned or connected with the allegations therein, that is to say, folios 16, 17, 18, 19, 20, 21, 22, 28.” It is true, the averment as to the different articles of machinery having become fixtures is found in folio 23, but this language cannot be considered as a denial of that averment. If it was so intended, then the pleader has expressed himself too ambiguously to enable this court so to construe it. It is likewise true that the answer contains a further denial in these words: “ The defendant denies each and every allegation of said complaint in any way inconsistent with this, his answer.” The effect of this last clearly is only to deny those allegations of the complaint with respect to which specific answer has already been made, and so far only as they may be inconsistent with the answer. It is a form of denial adopted apparently to confirm and make more certain the specific defenses contained in the answer, and serves no other purpose. It does not operate as a denial of anything beyond those defenses, and all other allegations of the complaint stand admitted for want of answer.

*686It is obvious from this view of tbe pleadings, that the in-junctional order ought not to be vacated. It is immaterial to the rights or equities of the plaintiffs in this particular, whether the appellant or Moon was the true party to the contract with Morse, under the name or style of T. W. Morse & Co. That issue can be determined hereafter, when the proofs come in, should it otherwise become material in this action. The plaintiffs demand judgment of foreclosure and sale, and also judgment for any deficiency, etc. It may be doubtful, under the decision in Button v Schroyer, 5 Wis., 598, whether they are entitled to this relief; but if not, their demand in this respect will be rejected, and they will be entitled to judgment of strict foreclosure upon establishing the facts charged in the complaint.' As the answer of the appellant fails to controvert any of the material facts alleged in the complaint, save only as to his personal liability upon the contract and the notes, if that be material, it follows that the order apj)ealed from was correct. The injunction should not be dissolved as upon complaint and answer.

We notice the remarks of counsel for the appellant, that this is not a proper case for an injunction — that it is to restrain the commission of a mere trespass, or to restore the property taken after the trespass has been committed, where an action at law is the proper remedy. It may be that an action on the case would lie in favor of the plaintiffs to recover the damages sustained by them in consequence of the removal of the machinery. Jones v. Costigan, 12 Wis., 677, would seem to be authority for this. That was an action by a mortgagee to recover damages for injuries caused by-the wrongful and fraudulent removal of the doors and windows from the dwelling house situated on the mortgaged premises, whereby the security was diminished and the mortgagee suffered loss. The situation of the plaintiffs with respect to the premises and property in controversy is quite analogous to that of mortgagees, and their rights should be the same, or certainly no less. But the case of Jones v *687Costigan clearly recognizes the right of the mortgagee to the remedy by injunction whenever that remedy will be in any way beneficial. Equity, having jurisdiction to subject the property to the payment of the deb.t and to protect and enforce the mortgage creditor, will do so by any process within its power. It will, if necessary for this purpose, lay hold of the property after it has been severed or removed, and restrain or prevent the sale or other disposition of it. The position of the plaintiffs, and their relations to the property under the contract, being in substance the same as if they were mortgagees, equity will grant the same relief in their favor. This it will do in virtue of their right or title to the property which still remains, notwithstanding its severance and removal.

It seems to be supposed that the appellant may have the benefit of the statements and denials in the answer of his co-defendants Morse and Moon (who do not appeal), for the purpose of obtaining a dissolution of the injunction. If this be so, it does not vary the case, as their answer, unaided by any proof of the alleged alterations of the contract, furnishes no sufficient ground for a dissolution.

By the Court. — Order affirmed.

The cases contained in this appendix were decided prior to the January term, 1873, but have never been reported.