| Mich. | Apr 29, 1886
The plaintiff brought suit against the defendant, declaring in two counts, — one in trover for the conversion of two steam-boilers, one smoke-stack, one steam-engine, one stave-cutting machine, and one machine for dressing and circling heading, and the other in trespass for taking and carrying away the same property.
The case was tried before the court without a jury. The court'found the facts to be, in substance, as follows:
1. On the twenty-eighth day of December, 1873, and for some years prior thereto, the firm of Haven, McKay & Co. were the owners of about two acres of land in the village of Grandville, Kent county, Michigan, on which they had erected a steam stave and heading mill, which they had run and operated for some time prior to that date. Said mill was always used exclusively in the business of manufacturing staves and heading. The mill building, when completed, cost about $1,500. It was a stout frame, about forty by fifty feet square, two stories high, inclosed, having a shingle roof, and was built for the express purpose of being used on said land as a stave and heading mill, and to have placed therein all the machinery hereinafter referred to. The building was well adapted to this use. After the removal of said machinery, and at the date of removal, the building was of little value, not exceeding $200. The business of running the mill had proved unprofitable, and had been abandoned, Haven, Blake & Co. having failed in business.-
The firm of Haven, McKay & Co., upon the completion of said building, placed therein the following machinery, all of which was a part of the mill, and was necessary to consti
On the twenty-eighth day of December, 1873, the firm of Haven, Blake & Co., composed of John Y. D. Haven, Joseph Blake, Levi Day, and Dwight Nankin, purchased of said firm of Ilaven, McKay & Co., and the same uvas conveyed to them by deed, as real estate, said property, and they immediately took possession of the same, and operated a?nd ran said mill until December, 1877.
2. While Haven, Blake & Co. so owned the property, and on January 16,1875, they procured the plaintiff and one Hiram Jenison to indorse their note for $3,000, payable to the order of said William Manwaring and Hiram Jenison. At its maturity this note, without going to protest, was renewed by the giving of a new note signed by Manwaring and Jenison, payable to the- order of Haven, Blake & Go. This new note was renewed from time to time until Decern
At the time of the making of the first note Haven, Blake & Co. gave to said Manwaring and Jenison a chattel mortgage to save them harmless from loss for indorsing said note. Said mortgage was filed in the office of the clerk of the town of Wyoming, January 16, 1875, that being the place of residence of the mortgagors, and the property being also there situate. The chattel mortgage covered the property in issue in this suit, and about three hundred cords of stave and heading bolts lying in the mill-yard. The machinery is described in the mortgage as being “ now in use in this mill in Grandville.”
3. On the thirteenth day of January, 1876, said mortgage wa.s renewed by the filing of the following affidavit:
“ County of Kent, Township of Wyoming — ss.: I, William Manwaring, one of the mortgagees named in the mortgage given by Haven, Blake & Co. to Hiram Jenison and William Manwaring, January 16, 1875, for the sum of three thousand dollars, do hereby certify that the sum of twelve hundred and seventy-five dollars is claimed by me to be due thereupon at the date hereof, which sum constitutes the amount of interest of Hiram Jenison and William Manwaring in the property therein mentioned and described.
Wm. Manwaring.
“ Subscribed and sworn to before me this thirteenth January, 1876.
James A. Knowles, Notary Public, Kent Co., Mich.”
And also renewed again February 21, 1877, by the filing of the affidavit given below, as follows:
“ State of Michigan, County of Kent — ss.: Wm. Man-waring, the within mortgagee, being duly sworn, says that there is now due and unpaid on the said mortgage hereunto annexed the sum of two thousand dollars by virtue of said mortgage, and therein mentioned. Wm. Manwaring.
“ Sworn to and subscribed before me this fifteenth day of February, 1877.
“ Wm. H. Galloway, Justice of the Peace.”
é. The mill was closed up and stopped running, and the company became insolvent. The property in question rG
“ CnATTEL-MORTGAGE SALE.
“By virtue of a chattel mortgage now in my hands, I shall sell to the highest bidder, at the stave-mill, in the village of Grandville, Kent Co., State of Michigan, on the eleventh day of August, 1877, at one o’clock r. m., all the personal property herein described : Two steam-boilers, one smoke-stack, one engine, one stave-cutting machine, and one machine for dressing and circling heading, and 50,000 staves, more or less.
“ July 30, 1877. James Jewell, Constable.”
At the time and place named said Jewell appeared and sold the property at auction, pursuant to the terms of the chattel mortgage, to William Manwaring, he being the highest bidder therefor. The property was bid in at the sum of $¿74.90, and Manwaring received a memorandum of his purchase from Jewell. Previous to the sale the said Jewell seized the property under the chattel mortgage by going into the mill, July 30, 1877, and announcing that he seized the property under the mortgage aforesaid. At the time of the sale the property was in view of the officer, but no part of it was detached from the mill, and the plaintiff did not then, nor at any other time, attempt to detach or remove said property from the mill, or any part of it, and did not exercise, or attempt to exercise, any control over it, excepting that after his purchase he claimed to own the property, and offered it for sale.
5. In the month of March, 1880, the defendant sold the property in question, which was still attached to the mill, for the sum of $1,400 to one Adolph Leitelt, which-sum was paid by said Leitelt to defendant, the said property .being then worth $1,400. Said -Leitelt removed the property to Grand Bapids, and used it in his business. Nothing was done with it by defendant, except to sell it. to Leitelt.
6.. The title to the property in question claimed by Luman Jenison .at the time of his said sale was this, to-wit: The firm of L. & L. Jenison, composed of Luman and Lucius Jenison, were creditors of Haven, Blake & Co. for goods and supplies furnished to said firm of Haven, Blake & Co. by said L. & L. Jenison, commencing on the twenty-ninth day of December, 1873, and continuing along from time to time up to the first day of October, 1875, at which time the amount of such indebtedness was over $1,700.
On the twelfth day of June, 1876, the said firm of L. & L. Jenison commenced a suit against the said firm of Haven, Blake & Co., by attachment, to collect said indebtedness, and on the date of the issuingof said writ the same was duly levied upon the two acres of land aforesaid upon which this mill was situated, and of which this machinery was a part.
This suit was duly prosecuted to effect, and on the fourth day of November, 1876, a judgment was duly rendered in favor of the plaintiffs and against the defendants for the sum of $1,793.17 damages, and costs to be taxed. Execution was duly issued on this judgment November 4, 1876, and was duly levied upon said property on the eighteenth day of November, 1876; and the said property was duly advertised and sold by the said sheriff as real estate, by virtue of said writ, on the twenty-eighth day of May, 1877, to the plaintiffs in said writ, for the sum of $900, the sheriff giving and causing to be filed the proper certificate of such sale; and subsequently,,and on the nineteenth day of September, 1878, the property not being redeemed, he executed and delivered to said purchasers a deed of said property in pursuance of such sale.
At this sale Manwaring was present, and gave notice of his claim to the property in question, and the Jenisons, when they bought, knew of his claim. The defendants in said execution were the owners of said property at the time of the levy of the attachment, as well as at the levy of the execution aforesaid, and, from the time they purchased the
7. The plaintiff never had any lien on the property in question in this suit, or title thereto, except such lien as he acquired by virtue of the chattel mortgage aforesaid, and such title as he acquired by virtue of the sale under the notice, and by said Jewell, as aforesaid.
The circuit judge further found, as a matter of law, from the facts above stated, that the plaintiff was the owner of the property at the time of the sale and conversion of the same by the defendant, and that it was worth $1,400; and rendered judgment for the plaintiff in the sum of $1,815.42.
The defendant alleges that the facts found do not support the judgment, and brings error.
It is claimed that the plaintiff acquired no property in the goods and chattels in question here for several reasons :
1. That the machinery in-issue in this suit was real estate, and therefore not subject to chattel mortgage. ■
2. The first renewal of the mortgage was not in sufficient compliance with the statute, in that it does not state any amount as being owing or unpaid upon it. The second renewal was not in time, not being filed until February 21, 1877. How. Stat. § 6196.
3. The mortgage being given as an indemnity against loss upon the note indorsed by the plaintiff and Hiram Jenison, and that note not being protested, but a new note given by the indorsers as makers in its stead, the lien of the mortgage was lost. By the note not being protested, Man waring and -Jenison were discharged from all- liability thereon ; and the paying of the new note by plaintiff would not come under the terms of the mortgage. , ,
4. The power of sale in the mortgage .was to the mortgagees jointly, and not severally. Man waring alone could not execute the power.
5. The sale was void because the notice thereof was insufficient in several particulars, to-wit:
a — -It does-not pretend to be by. virtue of the. mortgage.
b — It does not give the name of mortgagors or mortgagees, the date, or any other means by which the mortgage could be identified or found. ‘ ' '
c — It does not claim to be done by order of or-under any authority from the mortgagees; or either of--them.-.
7. If thé plaintiff claims the property as mortgagee instead of purchaser, then he cannot recover without joining the other mortgagee, Hiram Jenison.
8. There should have been a demand for the property before suit.
There is no question as to the validity of the attachment proceedings, and the title of the defendant is undisputed, save by the claim of the plaintiff under this chattel mortgage and the sale by virtue of the power of sale contained therein.
The first question involved is the character of the property in issue. The defendant claims that, at the time the chattel mortgage was given, this machinery was a part of the realty, and not subject to its lion, and that it remained a part of the realty until its severance by Leitelt, and that the sale of the real estate, under the execution in the attachment proceedings, carried the title of this property to the defendant as purchaser at such execution sale.
There are many conflicting decisions in the books as to the dividing line between realty and personalty in cases where machinery has been affixed to mills and other buildings for use therein. A large number of cases hold that, if the article is attached for temporary use, with the intention of removing it, it does not lose its character as personalty ; but if it is placed there for permanent improvement of-the freehold, it becomes a part of the realty, Hellawell v. Eastwood, 6 Exch. 295, 312; Lancaster v. Eve, 94 E. C. L. 717; Crane v. Brigham, 11 N. J. Eq. 29; Walmsley v. Milne, 97 E. C. L. 114; Walker v. Sherman, 20 Wend. 636" court="N.Y. Sup. Ct." date_filed="1839-10-15" href="https://app.midpage.ai/document/walker-v-sherman-5515228?utm_source=webapp" opinion_id="5515228">20 Wend. 636; Potter v. Cromwell, 40 N.Y. 287" court="NY" date_filed="1869-03-22" href="https://app.midpage.ai/document/potter-v--cromwell-3621272?utm_source=webapp" opinion_id="3621272">40 N. Y. 287.
But most of the American authorities agree that the question.of the intention of the party or parties affixing the machinery enters into the elements of each case. The permanency of the attachment, and its character in law, do not depend so much upon the degree of physical force with which the thing is attached, or the manner and means of its attachment, as upon the motives and intention of the party in attaching it. If the intention is that the articles
In our own State it has been repeatedly held that the most important test in determining the character of the machinery affixed to a building is the intent of the parties making the annexation: Coleman v. Stearns Manufacturing Co., 38 Mich. 40; Crippen v. Morrison, 13 Id. 36; Adams v. Lee, 31 Id. 440-43; McAuliffe v. Mann, 37 Id. 542; Jones v. Detroit Chair Co., 38 Id. 92-94; Robertson v. Corsett, 39 Id. 777-85; Ingersoll v. Barnes, 47 Id. 104; Ferris v. Quimby, 41 Id. 206.
The rule is concisely laid down in these words by Chief Justice Campbell in Wheeler v. Bedell, 40 Mich. 696: “There is no universal test whereby the character of what is claimed to be a fixture can be determined in the abstract. Neither the mode of annexation, nor the manner of use, is in all cases conclusive, It must usually depend on the express or implied understanding of the parties concerned.The case of Wheeler v. Bedell was a contest between the holder of a real estate mortgage upon the land, which mortgage contained no reference to the planing-machine, and the holder of a chattel mortgage upon the planer, as to the title of it. The planing-machine was in the building when the real estate mortgage was given, and weighed about three tons, and was fastened to the floor at each end with cleats and two
In.the case before us, the intention of Haven, McKay & Co., who put this machinery in the mill, is gathered only from the mode of annexation and manner of use of the machinery, and the subsequent acts of Haven, Blake & Co., who were their successors. The machinery, save the engine and boilers, was fastened to the building nearly identical with the planing-machine in. Wheeler v. Bedell. Haven, Blake & Co. no doubt treated it all as personalty, and such was the understanding evidently between them and the plaintiff. They were then the owners of the real estate, and could have secured him upon the land if the intention had not been to treat the machinery as personal chattels that could be removed at any time.
There was nothing about this machinery that prevented its removal and use away from the building. The fact that the building was of but little value without the machinery cuts no particular figure in the case, if the intention of the parties is to control, nor that the building was used for no other purpose than that of a stave and heading factory. Sisson v. Hibbard, 75 N.Y. 542" court="NY" date_filed="1879-01-21" href="https://app.midpage.ai/document/sisson-v--hibbard-3599063?utm_source=webapp" opinion_id="3599063">75 N. Y. 542.
And the further fact that the engine and boilers could not be removed without removing the siding from some portion of the building is not controlling, and cannot affect the plaintiff’s rights. ' The removal did not take away or remove that which was essential to the support of the building; neither did it destroy or injure the chattels themselves; nor was the injury to the walls or sides of the building shown to be great either in extent or amount. That they were susceptible of removal, and of use elsewhere, is shown by the findings, and defendant’s own sale of them to Leitelt. Tifft v. Horton, 53 N. Y. 384; Sisson v. Hibbard, 75 Id. 544, 545; Crippen v. Morrison, 13 Mich. 31, 32.
The cases relied upon as supporting a contrary doctrine in this State by the defendant’s counsel" are Lyle v. Palmer, 42 Mich. 316, and Morrison v. Berry, Id. 389.
In the case of Lyle v. Palmer the machinery in question was described in and covered by the real-estate mortgage, though it is stated that the parties supposed it to be personal. It was "decided that Palmer, the trustee in bankruptcy of the mortgagors, could not hold the machinery, even if it was considered to be personalty; but Justice Cooley in his opinion remarks that the machinery was specially adapted for “use in connection with the real estate; it was' put up for use, and actually used with it, and was not severed from the realty in ownership;” and therefore concludes that the parties were mistaken in, supposing it to be personal property.
But in a dissenting opinion in Morrison v. Berry, the same Justice, on page 397, in discussing that case, says “that the question of fixture or no fixture depends upon the intention of the parties;” and quotes approvingly the language of Chief Justice Campbell'in Wheeler v. Bedell.
The controlling opinion in Morrison v. Berry was placed upon the ground that the intention of both parties was explicit that, the articles were, to become' a part of "the freehold, and therefore does not aid the defendant’s "case liéi’é;
In the case at bar there is no finding that this machinery was specially adapted or built for this particular building,, but that it “was well adapted to the use the firm was putting it to” in the mill. It was just as well adapted for use in any other mill for the same purposes.
"When we take into consideration the large number of mills temporarily erected all over the country for the manufacture of staves, heading, and other articles, while the timber may last in a particular section, and then the machinery to be removed elsewhere to be put in another temporary structure for like uses; and the fact that this class of. machinery is manufactured for sale and use, without reference to any particular building, and to be employed in various mills until worn out or destroyed, — it would not be in harmony with the general method of doing business, nor desirable, to make any or all of the characteristics of the annexation or use of this machinery in this mill the guide in determining whether it should be considered real or personal property, regardless of the intention of the parties, nor do I think there is any fixed or controlling rule of law requiring such holding.
The finding in regard to the value of the building without the machinery seems to be somewhat conflicting. It is stated, in one part of the finding, that the mill building, when completed, cost about $1,500, and in another that, at the date of the removal of the machinery, it was of little value, not exceeding $200. It was probably never worth the item of its cost. It was no doubt built for the purpose of covering the machinery, and supporting it in position while in use. It might well be said, under the findings in this case, that the building itself was not placed upon the premises for the permanent improvement of the freehold, but for temporary
When Haven, Blake & Co. mortgaged the property to Manwaring and Jenison, they could have made it personalty by the mere severance of it from the building. I think, when they so mortgaged this machinery, no other person’s rights then intervening or being affected by it, it was in law such a severance as would make the articles, between them and the mortgagees, personal property. I do not suppose that it will be claimed that, in a controversy between the mortgagees and Haven, Blake & Co., the latter could dispute the lien of the mortgage upon the ground that the articles were not chattels, but part of the real estate. Corcoran v. Webster, 50 Wis. 125" court="Wis." date_filed="1880-09-21" href="https://app.midpage.ai/document/corcoran-v-webster-6603227?utm_source=webapp" opinion_id="6603227">50 Wis. 125.
The purchaser under the execution sale does not stand in the relation of a bona fide purchaser of the land without notice of the rights of the plaintiff. lie only took, by his levy, the same title his judgment debtors had. It gave him a lien upon all the right, title, and interest of Haven, Blake & Co., but upon no better title. The question of good faith as purchaser at the execution sale does not arise, as there can be no claim of estoppel against either Haven,, Blake & Co. or the plaintiff. At the time of sale he was notified" and knew of plaintiff’s claim, and he acquired no new equities
It must be conceded that in. this State, as well as others, under many decisions, that if the mortgage in this case.had been given before these articles were put in the mill, their attachment, as they were affixed, would not have changed their character as chattels: Crippen v. Morrison, 13 Mich. 23" court="Mich." date_filed="1864-10-27" href="https://app.midpage.ai/document/crippen-v-morrison-6633282?utm_source=webapp" opinion_id="6633282">13 Mich. 23-37; Ingersoll v. Barnes, 47 Id. 104; Tifft v. Horton, 53 N.Y. 377" court="NY" date_filed="1873-09-23" href="https://app.midpage.ai/document/tifft-v--horton-3610965?utm_source=webapp" opinion_id="3610965">53 N. Y. 377; Voorhees v. McGinnis, 48 Id. 278; Sisson v. Hibbard, 75 Id. 542.
Therefore I see no reason why the annexation of these articles to this building before the mortgage was executed should prevent their being treated as personalty, when it is manifest that it is the intent of the parties, and not the annexation, that controls and fixes their status. As shown in Crippen v. Morrison, the placing of a chattel upon the soil, or by.fixture to a building upon the soil, never by necessity makes it a part of the realty where the chattel is yet separable, and capable of being removed by the owner.
The cases cited by defendant’s counsel from Massachusetts hold a different doctrine, for the reason “that the intention of the parties to change it to personal property is one which the law will not carry into effect: ” Richardson v. Copeland, 6 Gray, 538; Gibbs v. Estey, 15 Id. 589; Pierce v George, 108 Mass. 82. This, however, is not the law in this State.
The first renewal of the mortgage was sufficient. It sets forth that $1,275 “constitutes the amount of interest of Hiram Jenison and'William Manwaring'in the'property therein mentioned and described.” It is in compliance with the statute. How. Stat. § 6196.
The second affidavit was not filed in time, but was' sufficient in form. The attachment levy under which the defendant claims was made June 12, 1876, and judgment obtained November 4, 1876. The levy, by execution upon this judgment, was made November 18, 1876, and sale under such levy took place May 28, 1877, at which sale the plaintiff was
It will be seen that the mortgage was in force by virtue of the first renewal, when both the attachment and execution levies were made; and, when the sale was made, the second renewal had been in force under the exception to the statute for over three months. The exception to the statute reads as follows: “Provided, that such affidavit being made and filed before any purchase of such mortgaged property shall be made, or other mortgage- received or lien obtained thereon in good faith, shall be as valid to continue in effect such mortgage, as if the same were made and filed within the period as above provided.” blow. Stat. §§ 6196, 6197.
"When the defendant acquired his attachment and execution lien, the mortgage was valid, and he had constructive notice of plaintiff’s rights under the same; and also, when he purchased, he had both actual and constructive notice. He must take his lien as it stood when ho acquired it. He did not gain any element of good faith by the simple omission of plaintiff to file his affidavit in time. If the renewal had not been made before the sale, a different-question might have arisen, but it is not necessary to discuss it here. The defendant’obtained his lien and made the purchase at the sale while the mortgage w-as in force under the statute, and must be held as concluded thereby. The debt upon which he obtained judgment was not incurred during the month this mortgage was not renewed. Indeed, his claim was adjudicated and fixed by judgment while the mortgage was in force under the first renewal, which was in time and valid.
When the note upon which Manwaring and Jenison were indorsers became due, it was not necessary that they should wait for the protest of the note in order to keep their indemnity mortgage alive. They had a right to pay the note by giving their own, as they did, and hold their security, as they did ; and if, instead of renewing the old note, they saw fit to change the character of their liability to the holder of the paper, with the consent of Haven, Blake & Co., no one else has any reason to complain.
There is no doubt but Manwaring had a right to purchase the property at the sale. It was not necessary that he and Jenison should both be present and bid together, or that he should purchase the property in the names of both. There is no warrant in the statute for any such idea. How. Stat. § 6200.
The only remaining objection necessary to notice is the one that the notice of sale was insufficient. The notice does not give the date of the mortgage, or its amount, or the names of either mortgagors or mortgagees, but describes the property, and there is no complaint that the notices, such as they were, were not sufficiently and properly posted as to time or places of posting.
It does not appear that any one was misled by this notice. There was but one mortgage upon the property, and that was on file in the proper office. Any one seeing the notice, and wishing to bid upon the property, could easily inform himself as to the identity of the mortgage.
Was the sale void because of the failure in the notice to describe the mortgage more accurately, and the omission therefrom of the names of the mortgagors and mortgagees? We think not. The power of sale, in default of the payment by Haven, Blake & Co. of the note indorsed by Manwaring and Jenison, authorized the mortgagees “ to sell at public auction,
The statute governing constable’s sales on execution, in force at the time of the sale in question here, and in relation to the notice thereof, provided that the constable should “give public notice, by advertisement signed by himself, and put up at three public places in the city or township where the goods and chattels shall be taken, when and where they will be exposed for sale.” Comp. Laws 1871, § 5414. The notice was required to be put up at least five days before the time appointed for the sale. Comp. Laws 1871, § 5415.
Under this statute it was held in Perkins v. Spaulding, 2 Mich. 160, that the omission of the name of the defendant in execution would not vitiate a sale ; and it was never considered necessary to insert the name of the plaintiff in execution: Cow. Treat. § 1620.
The statute has also, since then, received a legislative construction by the amendment of 1879, prescribing that the notice
Notices of foreclosure sale on chattel mortgages have also, in other states, been held valid notwithstanding the defects pointed out in the present notice: Jones, Chat. Mortg. § 795; Waite v. Dennison, 51 Ill. 319" court="Ill." date_filed="1869-09-15" href="https://app.midpage.ai/document/waite-v-dennison-6953605?utm_source=webapp" opinion_id="6953605">51 Ill. 319; McConnell v. Scott, 67 Ill. 274" court="Ill." date_filed="1873-01-15" href="https://app.midpage.ai/document/mcconnell-v-scott-6956547?utm_source=webapp" opinion_id="6956547">67 Ill. 274; Fitzpatrick v. Fitzpatrick, 6 R. I. 64.
In Waite v. Dennison the notice gave neither the date of the mortgage nor the names of the parties to it. It was not signed by any one, but stated in the body of the notice that the sale would be made by W. A. Butters & Co., without stating in what capacity they were acting. It was shown aliunde that they were the agents of the mortgagee.
While the power must be strictly pursued, it is only necessary that it be fairly executed. There is nothing to be gained by requiring, in a sale of this kind, any technicalities the want of which has injured no one.
The omissions complained of in this notice are mere irregularities! There is no showing in the record that the defends
If a thousand bidders had attended the sale, and the record is silent as to the attendance, and run the property up to its full value or more, it would not have been of any benefit to the defendant, as the mortgage debt in that event would have swallowed the property.
There was no necessity for making any demand before suit.
The defendant had full notice of plaintiff’s claim, and was a trespasser from the beginning.
The judgment is affirmed, with costs.
How. St. § 6200, provides “that at any sale of property upon foreclosure of a chattel mortgage, the mortgagee or his assigns, or his or their legal representative, may favrly and in good faith purchase the property so offered for sale, or any part thereof.”
Act 178, Public Acts of 1887, p. 185, amends How. Stat. § 6200, by extending its provisions to a pledge and pledgee.